United States v. Frey

• Court: Court of Appeals for the First Circuit
• Decided: July 8, 2021
• Docket: 16-1424P2
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

Nos. 16-1424 16-1435 16-1474 16-1482

PENOBSCOT NATION; UNITED STATES, on its own behalf, and for the benefit of the Penobscot Nation,

Plaintiffs, Appellants/Cross-Appellees,

v.

AARON M. FREY, Attorney General for the State of Maine; JUDY A. CAMUSO, Commissioner for the Maine Department of Inland Fisheries and Wildlife; DAN SCOTT, Colonel for the Maine Warden Service; STATE OF MAINE; TOWN OF HOWLAND; TRUE TEXTILES, INC.; GUILFORD-SANGERVILLE SANITARY DISTRICT; CITY OF BREWER; TOWN OF MILLINOCKET; KRUGER ENERGY (USA) INC.; VEAZIE SEWER DISTRICT; TOWN OF MATTAWAMKEAG; COVANTA MAINE LLC; LINCOLN SANITARY DISTRICT; TOWN OF EAST MILLINOCKET; TOWN OF LINCOLN; VERSO PAPER CORPORATION,

Defendants, Appellees/Cross-Appellants,

EXPERA OLD TOWN; TOWN OF BUCKSPORT; LINCOLN PAPER AND TISSUE LLC; GREAT NORTHERN PAPER COMPANY LLC,

Defendants, Appellees,

TOWN OF ORONO,

Defendant.

APPEALS FROM THE UNITED STATE DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge] Before

Howard, Chief Judge, Selya, Lynch, Thompson, and Barron, Circuit Judges.

Pratik A. Shah, with whom Lide E. Paterno, Akin Gump Strauss Hauer & Feld LLP, Kaighn Smith, Jr., David M. Kallin, and Drummond Woodsum were on brief, for appellant/cross-appellee Penobscot Nation. Mary Gabrielle Sprague, Attorney, Environment and Natural Resources Division, United States Department of Justice, with whom Jeffrey Bossert Clark, Assistant Attorney General, and Eric Grant, Deputy Assistant Attorney General, were on brief, for appellant/cross-appellee United States. Kimberly Leehaug Patwardhan, Assistant Attorney General for the State of Maine, with whom Aaron M. Frey, Attorney General for the State of Maine, and Christopher C. Taub, Deputy Attorney General for the State of Maine, were on brief, for state defendant appellees/cross-appellants. Joshua D. Dunlap, with whom Matthew D. Manahan and Pierce Atwood LLP were on brief, for state intervenor appellees/cross- appellants.

Opinion En Banc

July 8, 2021

 Judge Torruella heard oral argument in this matter and participated in the semble, but he did not participate in the issuance of the opinion in this case. LYNCH, Circuit Judge. On August 20, 2012, the Penobscot

Nation (the "Nation") brought suit against the State of Maine and

various state officials (the "State Defendants"). The Nation

stated in its original complaint, later amended, that when it

entered into an agreement with Maine to settle its land claims in

the state, "the Nation never intended to relinquish its ownership

rights" to a 60-mile stretch of the Penobscot River (the "River")

known as the Main Stem and that Congress intended "that the

Nation's reservation encompass ownership rights within and

attending" the Main Stem. The complaint sought (1) a declaratory

judgment that the Nation had exclusive regulatory authority over

the Main Stem; and (2) a declaratory judgment that the Nation had

sustenance fishing rights in the Main Stem. The United States

intervened in support of the Nation. Private interests, towns,

and other political entities (the "State Intervenors") intervened

in support of the State Defendants.

"Penobscot Indian Reservation" (the "Reservation") is

defined in a pair of statutes -- the Maine Implementing Act ("MIA")

and the Maine Indian Claims Settlement Act ("MICSA") --

collectively known as the Settlement Acts. See Me. Rev. Stat.

Ann. tit. 30; 25 U.S.C. § 1721 et seq. The district court, on

cross-motions for summary judgment, issued declaratory relief

saying that the Reservation does not include the waters of the

Main Stem or the submerged lands of the riverbed underneath it but

- 3 - holding that the Nation has sustenance fishing rights in the Main

Stem. See Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 222-23

(D. Me. 2015). A divided panel of this court affirmed the district

court's holding as to the definition of Reservation and vacated

its holding as to the Nation's sustenance fishing rights. The

Nation and the United States petitioned for rehearing en banc. We

vacated the panel opinion and dissent and granted the petition.

Penobscot Nation v. Frey, 954 F.3d 453, 453 (1st Cir. 2020).

In this en banc decision, we hold that the Reservation

does not include the waters and submerged lands constituting the

riverbed of the Main Stem. The plain text of the definition of

Reservation in MIA and MICSA plainly and unambiguously includes

certain islands in the Main Stem but not the Main Stem itself. We

also hold that even if there were some arguable ambiguity as to

the language at issue, the context, history, and clear legislative

intent require rejection of the Nation's claim. As to the Nation's

sustenance fishing claim, we do not accept the Nation's argument

that its sustenance fishing rights alter the meaning of

Reservation. We disagree that they have anything to do with the

definition of Reservation. Such fishing rights do not alter or

call into question the clear definition of Reservation. As to the

Nation's claim that Maine has infringed those fishing rights, that

claim is not ripe and the Nation lacks standing.

- 4 - I. Facts and Procedural History

The Penobscot River runs through the state of Maine.

Its East and West Branches meet at the River's Main Stem, and the

Main Stem stretches south for 60 miles. Within the Main Stem are

a number of islands, including Indian Island, the Nation's

headquarters.

Going back centuries, various iterations of the Indian

Nonintercourse Act, 25 U.S.C. § 177, along with a series of

treaties and transactions between the Nation and Massachusetts1

and the Nation and Maine, clouded title to certain land and natural

resources in Maine. See id. § 1721(a)(1). In 1980, the United

States, Maine, the Nation, and other Indian tribes in Maine reached

an agreement which "represent[ed] a good faith effort . . . to

achieve a fair and just resolution of those claims which, in the

absence of agreement, would be pursued through the courts for many

years to the ultimate detriment of [Maine] and all its citizens,

including the Indians." Me. Rev. Stat. Ann. tit. 30, § 6202; see

25 U.S.C. § 1721(7). To implement this agreement, Maine passed

MIA, Me. Rev. Stat. Ann. tit. 30, § 6201 et seq., and Congress

passed MICSA, 25 U.S.C. § 1721 et seq.

1 Present-day Maine was part of Massachusetts until 1820.

- 5 - MICSA defines "Penobscot Indian Reservation" as "those

lands as defined in [MIA]." 25 U.S.C. § 1722(i). MIA defines the

Reservation as:

[T]he islands in the Penobscot River reserved to the Penobscot Nation by agreement with the States of Massachusetts and Maine consisting solely of Indian Island, also known as Old Town Island, and all islands in that river northward thereof that existed on June 29, 1818, excepting any island transferred to a person or entity other than a member of the Penobscot Nation subsequent to June 29, 1818, and prior to the effective date of this Act.

Me. Rev. Stat. Ann. tit. 30, § 6203(8).2

MIA also addresses the Nation's sustenance fishing

rights, saying:

Notwithstanding any rule or regulation promulgated by the [Maine Indian Tribal-State Commission] or any other law of the State, the members of the Passamaquoddy Tribe and the Penobscot Nation may take fish, within the boundaries of their respective Indian reservations, for their individual sustenance subject to the limitations of subsection 6.

Id. § 6207(4).3

On August 8, 2012, Maine's then-Attorney General,

William Schneider, issued a legal opinion (the "Schneider

Opinion") interpreting MIA and MICSA. This opinion said that the

River is not part of the Nation's Reservation and that Maine has

2 The Reservation also includes a few other parcels not at issue here. See Me. Rev. Stat. Ann. tit. 30, § 6203(8). 3 Subsection 6 gives Maine's Commissioner of Inland Fisheries and Wildlife the right "to conduct fish and wildlife surveys within Indian territories." Me. Rev. Stat. Ann. tit. 30, § 6207(6).

- 6 - "exclusive regulatory jurisdiction over activities taking place on

the River." The Schneider Opinion did not mention § 6207(4) of

MIA or the Nation's sustenance fishing rights.

Twelve days later, on August 20, 2012, the Nation filed

suit against the State Defendants. In its second amended

complaint, it disputed the Schneider Opinion's interpretation of

federal law. It sought a declaratory judgment that the Nation has

exclusive regulatory authority over the Main Stem and that the

Nation's members have the right to take fish for their individual

sustenance from the Main Stem which Maine has infringed.

On February 15, 2013, the State Defendants answered the

Nation's complaint and filed a counterclaim for declaratory

relief. They sought a declaratory judgment that "[t]he waters of

the main stem of the Penobscot River are not within the Penobscot

Nation reservation."

The State Intervenors -- a group of eighteen private

parties, municipalities, and related entities that border the

River and use it for discharges or other purposes -- moved to

intervene in support of the State Defendants. The district court

granted this motion on June 18, 2013. It also granted the United

States' motion to intervene in support of the Nation on February

4, 2014.

In 2015, the State Defendants, the Nation, and the United

States moved for summary judgment. The State Intervenors filed a

- 7 - motion for judgment on the pleadings. After holding oral argument

on these motions, the district court declared that (1) "the

Penobscot Indian Reservation as defined in [MIA and MICSA] includes

the islands of the Main Stem, but not the waters of the Main Stem"

and (2) "the sustenance fishing rights provided in [MIA] allows

the Penobscot Nation to take fish for individual sustenance in the

entirety of the Main Stem." Penobscot Nation, 151 F. Supp. 3d at

222-23.4 The parties cross-appealed.

On June 30, 2017, a divided panel affirmed the district

court's declaratory judgment regarding the definition of

"Penobscot Indian Reservation" under MIA and MICSA and vacated

with instructions to dismiss for want of jurisdiction its

declaratory judgment regarding the Nation's sustenance fishing

rights under MIA. Penobscot Nation v. Mills, 861 F.3d 324, 338

(1st Cir. 2017). The Nation and the United States petitioned for

rehearing en banc. We granted these petitions on April 8, 2020,

and vacated the panel opinion and dissent. Penobscot Nation, 954

F.3d at 453. We heard oral argument on September 22, 2020.

II. Analysis

We review grants of summary judgment de novo including

when, as here, there were cross-motions for summary judgment before

4 On the same day, in a separate order, the district court granted in part and denied in part the State Intervenors' motion for judgment on the pleadings for the same reasons the court gave in its order on the other parties' summary judgment motions.

- 8 - the district court. Signs for Jesus v. Town of Pembroke, 977 F.3d

93, 99 (1st Cir. 2020).

A. The "Penobscot Indian Reservation" Does Not Include the Waters or Submerged Lands of the Main Stem.

The State Defendants and the State Intervenors argue

that the Reservation includes only the islands identified in

§ 6203(8) of MIA, not the water or bed of the Main Stem. In

contrast, the Nation says that the Reservation includes both the

islands referred to in § 6203(8) of MIA and the entire Main Stem,

bank-to-bank, including its submerged lands. The United States

agrees with the Nation. Alternatively, it says that the

Reservation extends, at the very least, from the islands referenced

in § 6203(8) to the "thread," or centerline, of the River. Under

this interpretation, the Reservation would include portions of the

River that surround each of its islands.

1. "Penobscot Indian Reservation" is Unambiguously Defined in the Settlement Acts to Exclude the Main Stem.

To determine whether "Penobscot Indian Reservation"

includes the River's waters and submerged lands, we must interpret

that term as it is defined in the text of the Settlement Acts. We

begin with the text itself. See, e.g., Barnhart v. Sigmon Coal

Co., 534 U.S. 438, 450 (2002) ("As in all statutory construction

cases, we begin with the language of the statute."); United States

v. Alvarez-Sanchez, 511 U.S. 350, 356 (1994) ("When interpreting

a statute, we look first and foremost to its text."). When

- 9 - interpreting the Settlement Acts, we use ordinary tools of

statutory construction. See Maine v. Johnson, 498 F.3d 37, 44–45

(1st Cir. 2007) (treating the Settlement Acts "as a matter of

federal law" and using "ordinary statutory construction" when

interpreting them). As we discuss later, none of the Indian canons

of construction alter the Settlement Acts' definition of

Reservation.

Our "first step 'is to determine whether the language at

issue has a plain and unambiguous meaning with regard to the

particular dispute in the case.'" Barnhart, 534 U.S. at 450

(quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)).

"[I]f the statutory language is unambiguous and 'the statutory

scheme is coherent and consistent,'" Robinson, 519 U.S. at 340

(quoting United States v. Ron Pair Enters., Inc., 489 U.S. 235,

240 (1989)), then "[o]ur inquiry must cease," id.; see Niz-Chavez

v. Garland, 141 S. Ct. 1474, 1480 (2021); Babb v. Wilkie, 140 S.

Ct. 1168, 1172 (2020); Aroostook Band of Micmacs v. Ryan, 484 F.3d

41, 50-51, 53 (1st Cir. 2007) (following MICSA's plain meaning

when "MICSA is clear" and the "statutory scheme is a consistent

whole on the issue in question"); see also id. at 64 n.28. When

the text is unambiguous and the statutory scheme is coherent and

consistent, we do not look to legislative history or Congressional

intent. Carcieri v. Salazar, 555 U.S. 379, 392 (2009) ("We need

not consider [arguments about Congress's intent behind the Indian

- 10 - Reorganization Act] because Congress' use of the word 'now' . . .

speaks for itself and 'courts must presume that a legislature says

in a statute what it means and means in a statute what it says

there.'" (quoting Conn. Nat'l Bank v. Germain, 503 U.S. 249, 253–

54 (1992))).

In relevant part, § 6203(8) of MIA says: "'Penobscot

Indian Reservation' means the islands in the Penobscot River

reserved to the Penobscot Nation by agreement with [Massachusetts

and Maine] consisting solely of Indian Island . . . and all islands

in that river northward thereof that existed on June 29,

1818 . . . ." It is clear from MIA's text that the Reservation

includes "islands." Because "islands" is an undefined term, we

"construe it 'in accordance with [its] ordinary meaning.'" See

Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545,

553 (2014) (alteration in original) (quoting Sebelius v. Cloer,

569 U.S. 369, 376 (2013)). Dictionaries are useful aids in

determining a word's ordinary meaning.5 See, e.g., id. at 553-54

5 We interpret a statute's language in accordance with its ordinary meaning at the time of its enactment. See Niz-Chavez, 141 S. Ct. at 1480; Bostock v. Clayton County, 140 S. Ct. 1731, 1750 (2020). The Settlement Acts were enacted in 1980. The meaning of the word "island" has not changed over the past few decades. See Oxford English Dictionary (2d ed. 1989), https://www.oed.com/oed2/00121797 (defining "island" as "[a] piece of land completely surrounded by water," the same definition as in the most recent version of the dictionary). "Island" has had the same meaning for at least the past few centuries. See Noah Webster, Compendious Dictionary of the English Language 166 (1806) (defining "island" as "land surrounded by water"); Samuel Johnson,

- 11 - (citing dictionary definitions of "exceptional" to determine its

ordinary meaning); Kellogg Brown & Root Servs., Inc. v. United

States ex rel. Carter, 575 U.S. 650, 662 (2015) (citing dictionary

definitions of "pending" to determine its ordinary meaning).

An "island" is "[a] piece of land completely surrounded

by water." Oxford English Dictionary Online,

https://www.oed.com/view/Entry/99986 (last visited Jan. 14, 2021)

(first definition). Other dictionaries confirm this ordinary

meaning. See Merriam-Webster Online Dictionary,

https://www.merriam-webster.com/dictionary/island (last visited

Jan. 14, 2021) (first definition) ("An island is a piece of land

that is completely surrounded by water."); Black's Law Dictionary

(11th ed. 2019) (first and only definition) (defining "island" as

"[a] tract of land surrounded by water and smaller than a

continent").

These definitions make two things clear. First, an

island is "a piece of land." Land does not ordinarily mean land

and water. Indeed, land is ordinarily defined in opposition to

water. Oxford English Dictionary Online,

https://www.oed.com/view/Entry/105432 (last visited Jan. 14, 2021)

(first definition) (defining "land" as "[t]he solid portion of the

earth's surface, as opposed to sea, water" (emphasis added)).

Dictionary of the English Language (6th ed. 1785) (defining island as "[a] tract of land surrounded by water").

- 12 - MICSA incorporates MIA's definition of "Penobscot Indian

Reservation" by saying that that Reservation means "those lands as

defined [in MIA]," 25 U.S.C. § 1722(i) (emphasis added),

reinforcing that the Reservation consists of land only. MICSA

does not say "lands and waters" or "land or other natural

resources."6 Second, the piece of land constituting an island is

"surrounded by water." Water is important to the definition of

"island" because the presence of water around a piece of land is

what makes that piece of land an island. The surrounding water is

not itself part of an island. Indeed, Black's Law Dictionary goes

on to say that the word island is used "esp[ecially]" to mean "land

that is continually surrounded by water and not submerged except

during abnormal circumstances." Black's Law Dictionary (11th ed.

2019) (emphasis added).

The plain meaning of "island" is reinforced by

§ 6023(8)'s use of the phrase "in the Penobscot River" (emphasis

added). The definition references the Penobscot River to tell us

where the islands are located and which body of water surrounds

them. That is what the preposition "in" means. Oxford English

Dictionary Online, https://www.oed.com/view/Entry/92970 (last

6 "Land or other natural resources" is a defined term in both MIA and MICSA that explicitly includes water. See Me. Rev. Stat. Ann. tit. 30, § 6203(3); 25 U.S.C. § 1722(b).

- 13 - visited Jan. 14, 2021) (defining "in" to mean "[o]f position or

location").

MIA's use of the word "solely" in the Reservation's

definition also precludes any interpretation of § 6203(8) that

includes the River's submerged lands or its waters. The

Reservation includes "solely . . . Indian Island . . . and all

islands in [the River] northward thereof . . . ." Me. Rev. Stat.

Ann. tit. 30, § 6203(8). We have already explained why an "island"

plainly does not include its surrounding waters or submerged lands.

Because the Reservation's definition excludes any definition that

is not stated, see Burgess v. United States, 553 U.S. 124, 130

(2008), because it does not say that it includes the River or its

submerged lands, and because the Supreme Court has said that

"'[s]olely' means 'alone,'" Husted v. A. Philip Randolph Inst.,

138 S. Ct. 1833, 1842 (2018), and that "'[s]olely' leaves no

leeway" for anything more, Helvering v. Sw. Consol. Corp., 315

U.S. 194, 198 (1942), the Reservation includes only the specified

islands and not the Main Stem of the River or its submerged lands.7

7 Because MIA's definition of Reservation clearly includes only the islands, we reject the United States' alternative argument that that the Reservation extends from the islands to the thread of the River. There is no support in the text for this reading. We also reject the Nation and United States' argument that state common law informs the definition of Reservation. The text of the Settlement Acts does not allow us to use state common law in interpreting the Acts' definitional provisions.

- 14 - The Nation and the United States argue that Alaska

Pacific Fisheries v. United States, 248 U.S. 78 (1918), controls

this case. More than a century ago, in Alaska Pacific, the Supreme

Court interpreted the phrase "the body of lands known as Annette

Islands, situated in Alexander Archipelago in Southeastern Alaska"

used in an 1891 statute establishing an Indian reservation. Id.

at 86 (quoting Act of March 3, 1891, ch. 561, § 15, 26 Stat. 1095,

1101). It held that "the geographical name was used, as is

sometimes done, in a sense embracing the intervening and

surrounding waters as well as the upland -- in other words, as

descriptive of the area comprising the islands." Id. at 89. In

reaching this conclusion, the Court relied on the statute's plain

text, legislative history, and the Indian canon of construction

that "statutes passed for the benefit of dependent Indian tribes

or communities are to be liberally construed, doubtful expressions

being resolved in favor of the Indians." Id.

The Court found that the phrase "body of lands known as

the Annette Islands" at issue in Alaska Pacific was ambiguous and

had no plain meaning. See Amoco Prod. Co. v. Village of Gambell,

480 U.S. 531, 548 n.14 (1987) ("There is no plain meaning to 'the

body of lands' of an island group." (citing Alaska Pacific, 248

U.S. at 89)). As the Court explained in a later case, "body of

lands" is ambiguous because it has no precise geographic meaning.

Id. (stating that "body of lands" "did not have [a] precise

- 15 - geographic/political meaning[] which would have been commonly

understood[] without further inquiry" (citing Alaska Pacific, 248

U.S. at 89)). It was unclear if the water between the lands was

part of the "body." To resolve the ambiguity, the Court relied on

legislative history. Alaska Pacific, 248 U.S. at 89.

There is no ambiguity here, and so for that and other

reasons Alaska Pacific does not help the Nation, the United States,

or the dissent. A recent ruling by the Supreme Court involving

the boundaries of an Indian reservation has confirmed that reliance

on legislative history is only appropriate when a statute is

ambiguous. McGirt v. Oklahoma, 140 S. Ct. 2452, 2469 (2020)

("There is no need to consult extratextual sources when the meaning

of a statute's terms is clear."). Similarly, Alaska Pacific only

relied on an Indian canon that resolves "doubtful expressions" in

favor of Indian tribes because there was an ambiguity. 248 U.S.

at 89. When it was decided in 1918, Alaska Pacific did not

establish a special rule of construction when tribes' claims

involve water rights. It certainly did not establish a special

rule of construction meant to govern a different statute enacted

for a different purpose a century later. Indeed, the Court has

repeatedly recognized that in its past cases "address[ing] the

unique circumstances of Alaska and its indigenous population,"

"[t]he 'simple truth' . . . is that 'Alaska is often the exception,

not the rule.'" Yellen v. Confederated Tribes of Chehalis Rsrv.,

- 16 - No. 20-543, 2021 WL 2599432, at *3 (U.S. June 25, 2021) (quoting

Sturgeon v. Frost, 577 U.S. 424, 440 (2016)). The general rule

applicable to statutes is, as the Supreme Court recently

reinforced, that the "inquiry into the meaning of [a] statute's

text ceases when 'the statutory language is unambiguous and the

statutory scheme is coherent and consistent.'" Matal v. Tam, 137

S. Ct. 1744, 1756 (2017) (quoting Barnhart, 534 U.S. at 450).

As we have explained, the definition of Reservation in

the Settlement Acts is not ambiguous. It does not refer to a

nebulous "body of lands." Instead, it says the Reservation

consists "solely" of islands "in the Penobscot River." Me. Rev.

Stat. Ann. tit. 30, § 6203(8). The word "islands" has a plain and

precise geographic meaning, "solely" tells us that the Reservation

includes nothing else, and the phrase "in the Penobscot River"

specifies where the islands are. The fact that the Supreme Court

interpreted different language in a different statute that was not

a settlement act to reach a different result cannot be used to

create ambiguity in this statute. See McGirt, 140 S. Ct. at 2469

("The only role [extratextual sources] can properly play is to

help 'clear up . . . not create' ambiguity about a statute's

original meaning." (quoting Milner v. Dep't of Navy, 562 U.S. 562,

574 (2011))). For similar reasons, the Nation and United States'

- 17 - citations to Hynes v. Grimes Packing Co., 337 U.S. 86 (1949),8

Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970),9 and other cases

interpreting different language in different treaties or statutes

in different contexts are also unconvincing.

The Nation and the United States next argue that our

holding in Maine v. Johnson conflicts with our reading of

Reservation. Johnson addressed whether the Settlement Acts

8 The dissent relies on Hynes to muddy the waters. There, the Supreme Court interpreted the statutory phrase "any other public lands which are actually occupied by Indians or Eskimos within [the Territory of Alaska]" to include coastal waters for purposes of authorizing the Secretary of the Interior to designate such territory as part of an Indian reservation. 337 U.S. at 110- 16. It considered a number of extratextual factors in reaching that conclusion. Id. As the Court later clarified, it did so because that statutory phrase "did not have [a] precise geographic/political meaning[] which would have been commonly understood, without further inquiry, to exclude the waters," nor did the narrower phrase "'public lands,' in and of itself, ha[ve] a precise meaning." Amoco Prod., 480 U.S. at 548 nn.14-15. Hynes does nothing to dispel the fact that the term "lands" in isolation ordinarily excludes water, see, e.g., Hynes, 337 U.S. at 102 (referring to the "lands or waters" of a reservation), and that additional definitional or qualifying language is required for it to encompass water. The term "lands" in the context of MICSA's definition of the Reservation stands alone, and its incorporation by reference of MIA's definition of the Reservation as consisting "solely" of specified islands "in" water indicates that it should retain its ordinary meaning. 9 In Choctaw Nation, the language at issue was very different from the language in the definition of Reservation. The Court found the language ambiguous because it granted the Choctaw Nation land "up the Arkansas [River]" and "down the Arkansas [River]." 397 U.S. at 631. Additionally, unlike here, the Court was interpreting a treaty and applied the canon of construction interpreting "treaties with the Indians . . . as they would have understood them." Id.

- 18 - reserved to the Nation and the Passamaquoddy Tribe "authority (vis-

à-vis the State) to regulate pollution by non-Indians within the

tribes' territories." 498 F.3d at 41. The court held that they

did not. Id. at 45-47. In doing so, it explicitly refused to

decide the boundaries of the tribes' territories. See id. at 40

n.3 ("The territorial boundaries are disputed but, for purposes of

this case, we assume (without deciding) that each of the disputed

discharge points lies within the tribes' territories."); id. at 45

(describing "navigable waters within what we assume to be tribal

land"). The Nation and United States point to dicta in Johnson

where the court said "the facilities appear . . . to discharge

onto reservation waters retained by the tribes under the Settlement

Act." But in citing this dicta, they ellipt the court's

parenthetical explaining that it was not resolving any boundary

disputes. Id. at 47 ("[T]he facilities appear (even assuming the

tribes' boundary claims) to discharge onto reservation waters

retained by the tribes under the Settlement Act." (first emphasis

added)). Any dicta about boundaries in Johnson cannot alter the

plain meaning of Reservation and does not bind us. See

Municipality of San Juan v. Rullan, 318 F.3d 26, 28 n.3 (1st Cir.

2003) ("Dicta -- as opposed to a court's holdings -- have no

binding effect in subsequent proceedings in the same (or any other)

case.").

- 19 - The Nation, United States, and dissent also say that

Maine's arguments to us in its brief in Johnson are a concession

that the Nation's Reservation contains the Main Stem in its

entirety. Not so, either on a reading of that brief or under the

law. In a recent dispute related to the boundaries of an Indian

reservation, the Supreme Court confirmed that a party's prior

litigation position on a reservation's boundaries in a single case

does not concede the point in future cases. See McGirt, 140 S.

Ct. at 2473 n.14 (rejecting the dissent's reliance on "a single

instance in which the Creek Nation disclaimed reservation

boundaries for purposes of litigation"); see also Alt. Sys.

Concepts, Inc. v. Synopsys, Inc., 374 F.3d 23, 33 (1st Cir. 2004)

(outlining the doctrine of judicial estoppel, which requires that

"the estopping position and the estopped position . . . be directly

inconsistent" and that "the responsible party . . . have succeeded

in persuading a court to accept its prior position"). In a

footnote of a brief that it submitted in Johnson, Maine stated

that it was its "position that the Penobscot Reservation includes

those islands in the main stem above and including Indian Island

that have not otherwise been transferred, as well as the usual

accompanying riparian rights that likewise have not been

transferred, and that those riparian rights are subject to state

regulation." Brief of State of Maine as Intervenor-Respondent at

3 n.2, 498 F.3d 37 (Nos. 04-1363, 04-1375). It went no further

- 20 - than this. Maine did not explain what it understood to be the

sort of riparian rights that would "usual[ly] accompany[]" an

island reservation, and it is unclear whether it was asserting

that none of those rights had "been transferred" or that the

Reservation retained only those rights that had not been

transferred. Nor did it explain to what extent those rights were

"subject to state regulation." In any case, the Johnson court did

not adopt any version of Maine's statement and that issue was not

before it. Maine's past arguments in Johnson cannot override the

Settlement Acts' plain text.

2. The Definition of Reservation Is Not Altered by the Limitation of the Reservation to Islands as Earlier Described in Historic Treaties Between the Nation and Massachusetts and Maine.

The Nation, United States, and dissent argue that, when

construing the definition of Reservation in the Settlement Acts,

we must look to the Nation's past treaties with Massachusetts and

Maine. They say that because § 6203(8) describes the islands in

the Reservation as those "reserved to the Penobscot Nation by

agreement with the States of Massachusetts and Maine," Me. Rev.

Stat. Ann. tit. 30, § 6203(8), these past treaties govern what

"island" means in the Settlement Acts.10 They argue that "island"

10 The 1796 treaty between the Nation and Massachusetts says that the Nation gave up their rights to "all the lands on both sides of the River Penobscot" but reserved "all the Islands in said River, above Old Town, including said Old Town island." The 1818 treaty reaffirmed the Nation's 1796 surrender of land on

- 21 - does not carry its ordinary meaning but instead is a term of art

that means "anything reserved to the Nation by the 1796 and 1818

treaties." They make the disputed assertion that the Nation never

gave up any rights to the River in those treaties and from this

they conclude that the term Reservation must include the River.

To support this reading of § 6203(8), the Nation cites § 1723 of

MICSA, which it says extinguished the Nation's aboriginal title

only to lands it transferred, and the House and Senate Reports,

which say that "[t]he Penobscot Nation will retain as reservations

those lands and natural resources which were reserved to them in

their treaties with Massachusetts and not subsequently transferred

by them." S. Rep. No. 96-957 at 18 ("Senate Report"); H.R. Rep.

No. 96-1353 at 18 ("House Report").

MIA's reference to these treaties does not alter the

plain meaning of "islands" and creates no ambiguity. The phrase

"islands in the Penobscot River reserved to the Penobscot Nation

by agreement with the States of Massachusetts and Maine" is not a

term of art. See Confederated Tribes of Chehalis Rsrv., 2021 WL

2599432, at *7 (refusing to "discard the plain meaning of [a

statute's] 'Indian tribe' definition in favor of a term-of-art

both sides of the River and the reservation of certain islands in the River to the Nation. It also gave the citizens of Massachusetts "a right to pass and repass any of the rivers, streams, and ponds which run through any of the lands hereby reserved."

- 22 - construction" because the statutory context did not support such

a reading). MIA mentions the treaties to identify which islands

in the River are part of the Reservation. The Reservation includes

the "islands in the Penobscot River," minus any islands that were

not "reserved to the Penobscot Nation by agreement with

[Massachusetts and Maine]." Me. Rev. Stat. Ann. tit.

30, § 6203(8). Within this subset of islands, MIA further limits

the Reservation: it "consist[s] solely of Indian Island" and the

islands north of Indian Island "that existed on June 29, 1818,"

minus any island "transferred to a person or entity other than a

member of the Penobscot Nation subsequent to June 29, 1818, and

prior to the effective date of this Act." Id.

The dissent states that this interpretation of

Reservation treats the phrase "reserved to the Penobscot Nation by

agreement" "as if it were superfluous." Not so. The phrase

"reserved to the Penobscot Nation by agreement" serves an important

purpose: it makes the definition of Reservation consistent with

§ 1723 of MICSA. If the phrase "reserved . . . by agreement" were

removed from the definition, then the Reservation would plainly

include any islands in the River north of Indian Island that were

transferred before June 29, 1818 but never reserved by agreement.11

11 This is so because § 6203(8) only excludes islands transferred "subsequent to June 29, 1818" (emphasis added), the date of a treaty between the Nation and Massachusetts, from the Reservation. Without the reference to islands "reserved . . . by

- 23 - Such a definition would conflict with 25 U.S.C. § 1723, which

ratified all transfers the Nation made before December 1, 1873.

See Van Buren v. United States, 141 S. Ct. 1648, 1656 (2021)

(holding that statutory text is not superfluous where removing it

changes a statute's meaning).

The dissent's interpretation of § 6203(8), independent

of its flawed account of the history and meaning of the treaties,

is inconsistent with the applicable rules of statutory

interpretation. Its reading of Reservation would render

superfluous other language in the definition. If the dissent were

correct that the Nation reserved "all the islands in the Penobscot

[R]iver above Oldtown and including . . . Oldtown [I]sland" in its

1818 treaty with Massachusetts and that the Settlement Acts

intended to import this meaning into the definition, then the

statutory phrase "consisting solely of Indian Island, also known

as Old Town Island, and all islands in that river northward

thereof" would serve no purpose. The canon against surplusage

counsels against such an interpretation.12 See City of Chicago v.

agreement," the definition would say nothing about pre-1818 transfers. 12 Removing the superfluous language, the statutory definition would read: "'Penobscot Indian Reservation' means the islands in the Penobscot River reserved to the Penobscot Nation by agreement with the States of Massachusetts and Maine that existed on June 29, 1818 . . . ." Even after almost all of the "consisting" phrase is removed, the definition would still make clear that post- 1818 islands are not part of the Reservation.

- 24 - Fulton, 141 S. Ct. 585, 591 (2021) ("The canon against surplusage

is strongest when an interpretation would render superfluous

another part of the same statutory scheme." (quoting Yates v.

United States, 574 U.S. 528, 543 (2015))).

The dissent's proposed reading would also make other

parts of § 6203(8) inoperative. The definition says that the

Reservation includes "all islands" north of Indian Island "that

existed on June 29, 1818." If, as the dissent posits, the

Settlement Acts intended the Reservation to include the entire

Main Stem by referencing the treaties, then anything in the Main

Stem north of Indian Island would be read to be part of the

Reservation. Under the dissent's reading, this would be true

regardless of whether the land was submerged on June 29, 1818.

The phrase "that existed on June 29, 1818" would be redundant and

would have no meaning under the dissent's interpretation. Further,

the inclusion of the phrase reinforces that "islands" means only

the uplands.

In attempt to avoid these evident problems with its

interpretation, the dissent proposes that the "consisting solely

of . . ." phrase was included to clarify that the Reservation

includes the entire Main Stem, including Indian Island and all of

the islands north of Indian Island, minus any uplands in the river

that did not exist on June 29, 1818. This proposed reading by the

dissent is impermissible for a different reason: it requires the

- 25 - word "islands" to have two different meanings within the definition

of Reservation. Under the dissent's proposed reading, when

"islands" is used in the phrase "islands in the Penobscot River,"

it must mean "an area that includes waters." Then, when "islands"

is used later in the same sentence in the nearly identical phrase

"all islands in that river," it must mean "uplands alone."13 That

proposed reading is flatly at odds with the text. It also would

violate the "normal rule of statutory construction that 'identical

words used in different parts of the same act are intended to have

the same meaning.'" See Sullivan v. Stroop, 496 U.S. 478, 484

(1990) (quoting Sorenson v. Sec'y of Treasury, 475 U.S. 851, 860

(1986)). This rule is "surely at its most vigorous when a term is

repeated within a given sentence." Brown v. Gardner, 513 U.S.

115, 118 (1994) (stating that, given the "presumption that a given

term is used to mean the same thing throughout a statute," it would

be "virtually impossible" to read a statute in a way that would

give a word two different meanings in the same sentence); cf.

Mohamad v. Palestinian Auth., 566 U.S. 449, 456 (2012) ("[I]t is

difficult indeed to conclude that Congress employed the term

'individual' four times in one sentence to refer to a natural

person and once to refer to a natural person and any nonsovereign

13 The dissent does not appear to dispute that, in the phrase "all islands in that river" in § 6203(8), the word "islands" must mean "uplands only."

- 26 - organization."). The dissent's reading is "implausible in

context." Confederated Tribes of Chehalis Rsrv., 2021 WL 2599432,

at *11.

Our reading of § 6203(8)'s reference to the treaties is

also consistent with how MIA defines the Passamaquoddy Indian

Reservation. That definition similarly begins by referencing a

treaty, saying that the Passamaquoddy Indian Reservation "means

those lands reserved to the Passamaquoddy Tribe by agreement with

the State of Massachusetts dated September 19, 1794." Me. Rev.

Stat. Ann. tit. 30, § 6203(5). It then says that "[f]or the

purposes of this subsection, the lands reserved to the

Passamaquoddy Tribe by the aforesaid agreement shall be limited

to" various islands and parcels. Id. (emphasis added). Like in

the definition of Penobscot Indian Reservation, the agreement is

referenced to limit which islands the reservation includes. Also

like in the definition of Penobscot Indian Reservation, the islands

referenced in the treaty are then further restricted to mean less

than what the treaty reserved for the tribe. The definition of

Reservation accomplishes this restriction by using the word

"solely," while the definition of Passamaquoddy Indian Reservation

does so by saying "shall be limited to." The fact that the drafters

clearly intended the Passamaquoddy Indian Reservation to cover

less than what was reserved to the Passamaquoddy Tribe in its

agreement with Massachusetts undercuts the dissent's theory that,

- 27 - when defining Penobscot Indian Reservation, "the drafters of the

Settlement Acts intended in defining the 'Reservation' to preserve

what had been 'reserved . . . by agreement' prior to the Acts'

passage."

There is no plausible argument that the historic

treaties referenced in § 6203(8) govern the interpretation of the

Settlement Acts. The treaties no longer have any meaning

independent of the Settlement Acts, and MICSA is clear that Maine

no longer has any responsibilities to the Nation under the

treaties. 25 U.S.C. § 1731 ("[This Act] shall constitute a general

discharge and release of all obligations of the State of Maine

. . . arising from any treaty or agreement with, or on behalf of

any Indian nation.").

Even if the treaties could arguably be thought to induce

any ambiguity in § 6203(8), we reach the same conclusion. When

the text of a statute is ambiguous, we resolve the ambiguity by

looking to other evidence of the drafters' intent. Carnero v.

Bos. Sci. Corp., 433 F.3d 1, 7 (1st Cir. 2006) ("In searching for

clear evidence of Congress's intent, courts consider 'all

available evidence' about the meaning of the statute."); see

Robinson, 519 U.S. at 345–46. Here, the legislative history,

context, and purpose of the Settlement Acts show that the drafters

never intended the Reservation to include the River itself.

- 28 - Before the Settlement Acts were passed, Massachusetts,

then Maine, had exercised regulatory authority over the River for

more than a century. Massachusetts regulated the River before its

1818 treaty with the Nation. See 1810 Mass. Laws ch. LXXXVIII

(outlining penalties for obstructing the River or taking fish from

it outside of approved times) ; 1813 Mass. Laws ch. CXLIV (same);

1816 Mass. Laws ch. XCIX (providing for the appointment of fish

wardens for the River). After the 1818 treaty, once Maine

separated from Massachusetts and became a state in 1820, it

regulated the River in Massachusetts's stead. See 1843 Me. Laws

ch. 25 (providing for the appointment of fish wardens to supervise

fisheries in the River).

Massachusetts and Maine also conveyed parcels along the

Main Stem, including adjacent submerged lands, to municipalities

and private parties in publicly recorded deeds. These entities

relied on the title given to them by Maine and Massachusetts. They

used the Main Stem and built on its submerged lands. For example,

several dams were constructed in and adjacent to the Main Stem

beginning in the 19th and 20th centuries. See, e.g., Penobscot

Chem. Fibre Co., 30 F.P.C. 1465, 1465–66 (1963) (describing the

Great Works Dam, which was "built prior to 1900"); Bangor Hydro-

Elec. Co., 42 F.P.C. 1302, 1302 (1969) (describing two dams in the

Main Stem which were acquired in 1925). The Nation admits that it

did not execute leases or grant any interest in connection with

- 29 - any of these dams. As amended in 1988, § 6203(8) even mentions

the owner of some of these dams, Bangor-Pacific Hydro Associates.

It says that the Reservation includes certain "parcels of land

that have been or may be acquired by [the Nation] from [Bangor-

Pacific] as compensation for flowage of reservation lands by the

West Enfield dam." Notably, the compensation is only for flowage.14

It is not for building a dam on the submerged lands of the Main

Stem.

The Settlement Acts' stated intention was to resolve

outstanding disputes among the Nation, Maine, and parties

represented by the State Intervenors. The Settlement Acts were

passed after the Nation, along with two other tribes, claimed title

to two-thirds of Maine, an area "on which more than 250,000 private

citizens now reside." Senate Report at 11; House Report at 11.

In response to these claims, President Carter appointed retired

Georgia Supreme Court Justice William B. Gunter to recommend a

settlement. Senate Report at 13. Gunter's recommendation to the

President, which served as the basis for the Settlement Acts and

which is included in the Senate Report, explained that the Nation's

claims had caused "economic stagnation within the claims area" and

14 "Flowage" is "an overflowing onto adjacent land" or "a body of water formed by overflowing or damming." See Merriam- Webster Online Dictionary, https://www.merriam- webster.com/dictionary/flowage (last visited Jan. 25, 2021) (first and second definition).

- 30 - had resulted in "a slow-down or cessation of economic activity

because property cannot be sold, mortgages cannot be acquired,

title insurance becomes unavailable, and bond issues are placed in

jeopardy." Id. at 55. Justice Gunter wrote that "[w]ere it not

for this adverse economic result, these cases could take their

normal course through the courts, and there would be no reason or

necessity" for President Carter to take any action to facilitate

a settlement. Id. He ultimately recommended a settlement with

terms similar to those in MIA and MICSA. Id. at 56. However,

emphasizing the need to address the economic consequences of the

Nation's land claims and settle the land disputes, he wrote that

"Congress should immediately extinguish all aboriginal title, if

any, to all lands within the claims area except that held in the

public ownership by the State of Maine" if a settlement could not

be reached. Id. at 57.

The text of MICSA explicitly incorporates Justice

Gunter's concern about avoiding litigation and clarifying title to

land in Maine. It states MICSA's purpose is to "to remove the

cloud on titles to land in [Maine] resulting from Indian Claims"

and "to clarify the status of other land and natural resources in

[Maine]." 25 U.S.C. § 1721(b)(1)-(2). Other parts of the House

and Senate Reports on MICSA further support the idea that the

Settlement Acts were passed to avoid litigation in which "the court

would be required to decide questions of fact concerning events

- 31 - which began before this country was founded." Senate Report at

13; House Report at 12-14.

A key provision of the Settlement Acts, § 1723 of MICSA,

helped Congress achieve this purpose. Through § 1723, Congress

retroactively ratified "any transfer of land or natural resources

located anywhere within the State of Maine" made by any Indian

tribe, including the Nation. 25 U.S.C. § 1723(a)(1). "Transfer"

is defined extremely broadly15 and includes "any act, event, or

circumstance that resulted in a change of title to, possession of,

dominion over, or control of land or natural resources." Id.

§ 1722(n). The Settlement Acts also extinguished aboriginal title

to any land or natural resources the Nation transferred and barred

the Nation from making claims "based on any interest in or right

involving such land or natural resources." Id. § 1723(c). Through

this provision, Congress intended to extinguish all of the Nation's

land claims in Maine. See House Report at 18 ("[Section 1723]

provides for the extinguishment of the land claims of the . . .

the Penobscot Nation . . . in the State of Maine.").

Maine and the Nation "each . . . benefitted from the

settlement." Akins v. Penobscot Nation, 130 F.3d 482, 484 (1st

15 The Senate Report says that the word "transfer" covers "all conceivable events and circumstances under which title, possession, dominion, or control of land or natural resources can pass from one person or group of persons to another person or group of persons." Senate Report at 21.

- 32 - Cir. 1997). Indeed, the Nation benefited greatly. It largely

received "the powers of a municipality under Maine law." Id.; see

Me. Rev. Stat. Ann. tit. 30, § 6206. The settlement "confirmed

[the Nation's] title to designated reservation lands, memorialized

federal recognition of its tribal status, and opened the floodgate

for the influx of millions of dollars in federal subsidies."

Akins, 130 F.3d at 484 (quoting Passamaquoddy Tribe v. Maine, 75

F.3d 784, 787 (1st Cir. 1996) (alteration in original)). It also

established two multi-million-dollar trusts for the Nation: (1) a

$26.8 million trust to buy land and (2) a $13.5 million trust whose

income is paid quarterly to the Nation. See 25 U.S.C. § 1724(a)-

(d); Penobscot Nation v. Stilphen, 461 A.2d 478, 487 n.6 (Me. 1983)

(describing the trusts). Indeed, the Native American Rights Fund,

which represented the Nation in its land claim cases before the

Settlement Acts were passed, said shortly after the settlement

that "[t]he Maine settlement is far and away the greatest Indian

victory of its kind in the history of the United States." See

Penobscot Nation, 151 F. Supp. 3d at 196.

Discounting the history of the Settlement Acts

themselves, the dissent tells a one-sided story about the

importance of the River to the Nation, details the various treaties

the Nation entered into, and speculates about the Nation's

understanding of those treaties and how they must have reserved

the River for the Nation. It ends its history in the early 1800s,

- 33 - saying that it is this history that "formed the backdrop for the

Settlement Acts." It also relies on "post-enactment history of

the Settlement Acts" to reinforce its understanding, something the

Supreme Court has specifically counseled against. See McGirt, 140

S. Ct. at 2452 ("[E]vidence of the subsequent treatment of the

disputed land . . . has 'limited interpretive value.'" (quoting

Nebraska v. Parker, 136 S. Ct. 1072, 1082 (2016))); see also South

Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 356 (1998) (calling

post-enactment history the "least compelling" form of evidence).

It insists without textual support that the Settlement Acts "were

intended in significant part to make up for the fact that the

Nation had entered into . . . treaties . . . without . . . federal

authorization" in violation of the Nonintercourse Act.

The dissent's view of history is disputed,16 and,

regardless, beside the point. The record does not support the

contention that the drafters were motivated by anything other than

their stated purpose of "remov[ing] the cloud on the titles to

land in the State of Maine resulting from Indian claims." 25

U.S.C. § 1721(b)(1). They removed this cloud and settled all of

the Nation's claims by giving the Nation certain land, power,

recognition, and money. As we have recounted, the Settlement Acts'

16 For example, the State Intervenors argue that the Nation's aboriginal title to the River was extinguished by the Nation's 1713 treaty with Great Britain, the Treaty of Portsmouth.

- 34 - drafters wanted to avoid expensive, protracted litigation about

aboriginal title. They did not want courts to decide if, when, or

how the Nation's aboriginal title was extinguished by interpreting

centuries-old documents. And, as they stated explicitly, they did

not want the Nation's claims of aboriginal title rooted in these

treaties to muddy otherwise-valid title to lands or natural

resources in Maine.

Interpreting § 6203(8)'s reference to the treaties as a

resurrection of the Nation's claim to aboriginal title contravenes

all of these purposes. The dissent would have us undo MIA and

MICSA's settlement of all ownership disputes. But "[w]e cannot

interpret . . . statutes to negate their own stated purposes."

King v. Burwell, 576 U.S. 473, 493 (2015) (quoting N.Y. State Dep't

of Soc. Servs. v. Dublino, 413 U.S. 405, 419–20 (1973)). It is

implausible that the drafters intended to give the Nation exclusive

control of the Main Stem -- something it did not have in 1980 --

through a reference (which serves a different purpose) to long-

since-replaced historic treaties.17 This is especially so when the

17 The legislative history of the Settlement Acts provides even more evidence that the Reservation does not include the River. In background information provided to the House Committee on Interior and Insular Affairs, the Reservation was described as "a 4,000-acre reservation on a hundred islands in the Penobscot River." Settlement of Indian Land Claims in the State of Maine: Hearing on H.R. 7919 Before the Comm. on Interior and Insular Affairs, 96th Cong. 159 (1980) (background on H.R. 7919). If the Reservation included the entirety of the Main Stem, bank-to-bank, it would have had a surface area of approximate 13,760 acres.

- 35 - Settlement Acts released Maine from any obligation under those

same treaties, abolished the Nation's aboriginal title to anything

it ever voluntarily or involuntarily transferred, and purported to

settle all of the Nation's land and natural resource claims against

Maine and private parties.

Further, it is noteworthy that the Settlement Acts' text

and legislative history clearly indicate that the drafters did not

intend to give control of the Main Stem to the Nation. Doing so

would have been an enormous change. The River is an important

water artery that Maine (and Massachusetts before it) has

controlled for centuries.18 When the Settlement Acts were drafted

and passed, the Nation's claim to the River and other lands or

natural resources in Maine was speculative. If the drafters had

intended to shift Maine's longstanding ownership and control of

the Main Stem to the Nation, we would expect to see language in

the Settlement Acts' text or legislative history demonstrating

this intent and addressing the consequences of doing so. See,

e.g., Me. Rev. Stat. Ann. tit. 30, § 6207(3) (explicitly providing

for "an orderly transfer of regulatory authority" between Maine

18 As the State Intervenors put it, "it defies credulity that in 1980, after almost two hundred years of State control, the Settlement Acts would place the largest river running through the heart of the state, used by myriad mills, municipalities, and the public, within the boundaries of the Reservation, to be regulated, for the first time since colonists arrived, by the Nation." (internal citations omitted).

- 36 - and the Maine Indian Tribal-State Commission over specified bodies

of water); id. § 6207(6) (describing procedures by which Maine's

Commissioner of Inland Fisheries and Wildlife may intervene in the

event that "a tribal ordinance or commission regulation . . .

adversely affect[s] or is likely to adversely affect the stock of

any fish or wildlife on lands or waters outside the boundaries of

land or waters subject to [tribal or commission authority]"). But

we see none. It is improbable that, without addressing the issue,

the drafters intended to carry out such a massive change in

ownership and control over the Main Stem.

The dissent tries to limit the practical consequences of

its argument by saying that "the Nation has not . . . claimed a

right to exclude non-tribal members from any of the waters of the

Penobscot River or to control passage in those waters." It calls

the State Defendants' and State Intervenors' arguments about

ownership a "distraction." The idea that the Nation only seeks to

assert limited ownership rights in the River is purely speculative

and contrary to the record. In its original complaint,19 the Nation

19 These statements do not appear in the Nation's second amended complaint, and the Nation's brief to the original panel says that the second amended complaint "is narrowly drawn to address the only live controversy." However, in that same brief, the Nation argues that "it retains aboriginal title to the submerged lands of the Main Stem." It describes aboriginal title as "not identical to ownership" but, quoting Oneida County v. Oneida Indian Nation of New York, 470 U.S. 226, 235 (1985), "as sacred as the fee simple of the whites." Black's Law Dictionary describes "fee simple" as "the broadest property interest allowed

- 37 - asserted that it "never intended to relinquish its ownership rights

within the Penobscot River" and argued that Congress "inten[ded]

that the Nation's reservation encompass ownership rights within

and attending the Penobscot River." It asked for a declaratory

judgment that it has "exclusive authority to regulate hunting,

trapping or other taking of wildlife within the waters of the Main

Stem" and that its "law enforcement officers have exclusive

authority to enforce the Nation's laws governing hunting, trapping

or other taking of wildlife within the waters of the Main Stem."

And it has previously sued a non-tribal member who removed

submerged logs from the River in tribal court for "trespass to

tribal land" and "unlawful taking of tribal resources." Penobscot

Nation v. Coffman, No. 7-31-03-CIV-04, slip op. at 4 (Penobscot

Tribal Ct. Mar. 2, 2005). The tribal court, invoking a version of

the treaty argument, held that the River is part of the

Reservation. Id. at 3. The tribal court then held that MIA "does

not limit or define the tribal court's jurisdiction" and that the

Supreme Court "has recognized that tribal courts retain

jurisdiction over [civil] disputes arising on a reservation." Id.

at 2. Because the Nation "retains aboriginal ownership of the

by law." Black's Law Dictionary 760 (11th ed. 2019). In its brief to the original panel, the United States says that the Nation has an "ownership interest" in its Reservation and that "[i]t is unnecessary to determine whether the Nation's ownership interest in the land it has retained is best characterized as aboriginal title . . . ."

- 38 - Penobscot River, from bank to bank, limited only by the right of

the public to use the river for navigation," the tribal court held

that the Nation could successfully sue the non-tribal member and

stated that "there is no right granted to an individual to conduct

any . . . enterprise [other than the "limited public easement to

pass up and down the river for the purpose of commercial

transportation"] without tribal permission." Id. at 3-4. The

stakes of reading the definition of Reservation to include the

River are far greater than the dissent is willing to acknowledge.

3. The Indian Canons of Construction Do Not Alter the Settlement Acts' Plain Meaning or Override Clear Expressions of Tribal and Legislative Intent.

The Nation and the United States next argue that three

Indian canons apply to this case. None of these canons alter the

plain meaning of the Reservation's definition.20

The first canon they cite says that "[s]tatutes are to

be construed liberally in favor of the Indians, with ambiguous

provisions interpreted to their benefit." See County of Yakima v.

Confederated Tribes & Bands of Yakima Indian Nation, 502 U.S. 251,

269 (1992) (quoting Montana v. Blackfeet Tribe, 471 U.S. 759, 766

(1985) (alteration in original)). This canon only applies to

20 The State Defendants and State Intervenors argue that § 1725(h) and § 1735(b) of MICSA bar the application of any Indian canons of construction. Because we hold that the Indian canons are inapplicable for other reasons, we do not reach this issue.

- 39 - ambiguous provisions. South Carolina v. Catawba Indian Tribe,

Inc., 476 U.S. 498, 506 (1986) ("The canon of construction

regarding the resolution of ambiguities in favor of Indians . . .

does not permit reliance on ambiguities that do not exist.");

Littlefield v. Mashpee Wampanoag Indian Tribe, 951 F.3d 30, 40

(1st Cir. 2020). As we have explained, the definition of

Reservation in the Settlement Acts is not ambiguous. And even if

the definition of Reservation were ambiguous and the canon applied,

interpreting ambiguities to benefit the tribe does not mean that

we must "disregard clear expressions of tribal and congressional

intent." DeCoteau v. Dist. Cnty. Ct., 420 U.S. 425, 445 (1975)

(finding the canon did not support a tribe's interpretation of a

statute when "the 'face of the Act,' and its 'surrounding

circumstances' and 'legislative history,' all point[ed]

unmistakably" to a different interpretation); see also Yankton

Sioux Tribe, 522 U.S. at 349; Catawba, 476 U.S. at 506–07; Ore.

Dep't of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753,

774 (1985); Rice v. Rehner, 463 U.S. 713, 732-33 (1983); Andrus v.

Glover Constr. Co., 446 U.S. 608, 618-19 (1980). The context,

history, and purpose of the Settlement Acts point unmistakably to

an interpretation of the Reservation that excludes the Main Stem.

Next, they cite the Indian treaty canon: "Indian

treaties 'must be interpreted in light of the parties' intentions,

with any ambiguities resolved in favor of the Indians." Herrera

- 40 - v. Wyoming, 139 S. Ct. 1686, 1699 (2019) (quoting Minnesota v.

Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 206 (1999));

Jones v. Meehan, 175 U.S. 1, 11 (1899) (stating that treaties must

be construed "in the sense in which they would naturally be

understood by the Indians"). But the Settlement Acts are not

treaties. See Aroostook Band of Micmacs, 484 F.3d at 53 (refusing

to apply "rules of statutory construction favoring Indians"

applicable to treaties because interpreting MICSA "does not

involve any treaty"). They are statutes. The treaty canon has no

bearing on their interpretation.

Finally, they cite the Indian canon saying that

Congress's intent to diminish a reservation must be clear. See

Parker, 136 S. Ct. at 1078–79 ("'[O]nly Congress can divest a

reservation of its land and diminish its boundaries,' and its

intent to do so must be clear." (quoting Solem v. Bartlett, 465

U.S. 463, 470 (1984))); United States v. Santa Fe Pac. R.R. Co.,

314 U.S. 339, 345-46 (1941). This is not a traditional

diminishment case, as the United States admits in its brief to us,

making the canon inapplicable. Regardless, the text of the

Settlement Acts makes Congress's intent clear. "The most probative

evidence of congressional intent [to change a reservation's

boundaries] is the statutory language used." Solem, 465 U.S. at

470. The "unconditional commitment from Congress to compensate

the Indian tribe for its opened land" creates "an almost

- 41 - insurmountable presumption that Congress meant for the tribe's

reservation to be diminished." Id. at 470-71; see also McGirt,

140 S. Ct. at 2468 ("When interpreting Congress's work in [a

diminishment case], no less than any other, our charge is usually

to ascertain and follow the original meaning of the law before

us."). As we have stated, the statutory language defining the

Reservation makes it clear that Congress did not intend to include

the River or submerged lands as part of the Reservation. Congress

also agreed to put $13,500,000 into the Maine Indian Claims

Settlement Fund and $26,800,000 into the Maine Indian Claims Land

Acquisition Fund for the benefit of the Nation. 25 U.S.C.

§ 1724(a), (c). Congress intended these funds to compensate the

Nation for giving up any claims to the land or natural resources

not included in the Settlement Acts' definition of Reservation.

See Me. Rev. Stat. Ann. tit. 30, § 6203(12) (defining "Settlement

Fund" as "the trust fund established for the . . . Penobscot Nation

by the United States pursuant to congressional legislation

extinguishing aboriginal land claims in Maine"). Indeed, MICSA

forbids the Secretary of the Interior from using settlement fund

money for the benefit of the Nation unless the Nation has "executed

appropriate documents relinquishing all claims to the extent

provided by sections [of this Act approving prior transfer and

discharging Maine from all obligations arising from any treaties

or agreements with the Nation]." 25 U.S.C. § 1724(f). Congress

- 42 - intended the Settlement Acts to "provide the . . . Nation . . .

with a fair and just settlement of their land claims," id.

§ 1721(a)(7), and "clarify the status of other land and natural

resources in the state of Maine," id. § 1721(b)(2), so any

diminishment was intended.

4. The Nation's Reading of Reservation Makes Other Parts of the Settlement Acts Incoherent and Inconsistent.

Adopting the Nation and United States' reading of

"Penobscot Indian Reservation" would make other parts of the

Settlement Acts incoherent and inconsistent. See Robinson, 519

U.S. at 341. One section of MIA dealing with regulatory takings

of land within the Reservation says that "[f]or purposes of this

section, land along and adjacent to the Penobscot River shall be

deemed to be contiguous to the Penobscot Indian Reservation." Me.

Rev. Stat. Ann. tit. 30, § 6205(3)(A). This statutory language

makes it clear that, outside of § 6205(3)(A), land along and

adjacent to the River is not contiguous to the Reservation. If

land along and adjacent to the River is not contiguous to the

Reservation, then the Reservation cannot possibly include the

River itself. To interpret it otherwise would render

§ 6205(3)(A)'s language superfluous, something we must avoid. See

- 43 - City of Chicago, 141 S. Ct. at 91; Nielsen v. Preap, 139 S. Ct.

954, 969 (2019).

Next, other provisions of the Settlement Acts explicitly

address water, water rights, and submerged lands using different

and more specific language. Reading "Penobscot Indian

Reservation" to include these things when they are not mentioned

anywhere in the definition would make the Settlement Acts

inconsistent. For example, the Settlement Acts define the phrase

"land or other natural resources" -- not simply "land" -- to

include "water and water rights." 25 U.S.C. § 1722(b); Me. Rev.

Stat. Ann. tit. 30, § 6203(3). Equating "land" with "land or other

natural resources" in MICSA's definition of Reservation collapses

this difference. See 25 U.S.C. § 1722(i) (defining the Reservation

to include "lands," not "lands or other natural resources").

Another section of the Settlement Acts, Me. Rev. Stat. Ann. tit.

30, § 6207, shows that the drafters knew how to say "lands or

waters" when that is what they intended. See Me. Rev. Stat. Ann.

tit. 30, § 6207(5)-(6) (using "lands or waters" instead of

"lands").

MIA also addresses the Nation's authority to regulate

"any pond in which all the shoreline and all submerged lands are

wholly within Indian territory." Id. § 6207(1)(B) (emphasis

added). Penobscot Indian Territory is a defined term distinct

from Penobscot Indian Reservation. There is no reference in the

- 44 - Settlement Acts to any submerged lands in the Reservation, and the

use of "submerged lands" in § 6207(1)(B) is the only time the

phrase is used. Like their use of "land or other natural

resources" and "lands or waters" in other parts of MIA and MICSA,

the drafters knew how to -- and did -- include more than land when

they wanted to do so. Cf. Caraco Pharm. Labs., Ltd. v. Novo

Nordisk A/S, 566 U.S. 399, 416 (2012) ("[I]f we needed any proof

that Congress knew how to say [a phrase] when it meant [that

phrase], here we find it.").

5. The Settlement Acts' Grant of Sustenance Fishing Rights to the Nation Does Not Alter § 6203(8)'s Plain Meaning.

The Nation and the United States next argue that

§ 6207(4)'s grant of sustenance fishing rights to the

Passamaquoddy Tribe and the Nation "within the boundaries of their

. . . Indian reservations" means that § 6203(8)'s definition of

Reservation must include the River and its submerged lands. They

say that interpreting § 6203(8) to exclude the River's waters and

submerged lands is inconsistent with § 6207(4)'s grant of

sustenance fishing rights because the Nation can only exercise

these rights in the River.21

21 The Nation says that there are no waters on the surfaces of the islands to support fish. The State Defendants have admitted to this fact. MIA was amended in 1988 and 2009 to include lands other than the islands in the definition of "Penobscot Indian Reservation," but when the statute was originally passed in 1980, only the islands were included in that definition.

- 45 - At this stage, our inquiry is focused on the meaning of

Reservation under § 6203(8), not the scope of the Nation's

sustenance fishing rights under § 6207(4). We consider whether

the statutory scheme is coherent and consistent if Reservation is

given its plain meaning and this meaning is applied consistently

throughout the Settlement Acts, including to § 6207(4)'s grant of

sustenance fishing rights. See Barnhart, 534 U.S. at 450. We

hold that it is. Whether the phrase "Indian reservations" used in

§ 6207(4)'s grant of sustenance fishing rights is itself ambiguous

and susceptible to an interpretation that includes the Main Stem

is an entirely separate issue that we address later. The fact

that the Settlement Acts are coherent and consistent when "Indian

reservations" is taken to incorporate the plain meaning of

Penobscot Indian Reservation and exclude the Main Stem reinforces

our conclusion that the plain meaning of "islands" controls.

Section 6207(4) uses the phrase "Indian reservations" to

refer to two tribes' reservations, the Passamaquoddy Indian

Reservation and the Penobscot Indian Reservation. Even if the

Nation cannot exercise its sustenance fishing rights on its

islands, there is nothing in the record to indicate that the

sustenance fishing rights guaranteed to the Passamaquoddy Tribe by

§ 6207(4) is meaningless.22 The Nation and United States' argument

22 The dissent argues that for the Passamaquoddy Tribe to have sustenance fishing rights, the definition "'Passamaquoddy

- 46 - that § 6207(4) is incoherent as applied to the Nation alone ignores

§ 6207(4)'s broader application and context. The section still

has meaning as applied to the Passamaquoddy Tribe and is not, as

the Nation and United States argue, rendered a nullity when

"islands" is given its plain meaning.

The Nation, the United States, and the dissent read too

much into the § 6207(4)'s grant of sustenance fishing rights.

Section § 6203(8) gives a clear definition of "Penobscot Indian

Reservation" that does not include the Main Stem. The Settlement

Acts' context and purpose confirm this reading, and they are fully

coherent when the Reservation is given this meaning. We have not,

as the dissent argues, "set aside" § 6207(4) in determining what

§ 6203(8) means. We have explicitly considered whether § 6207(4)

makes sense when § 6203(8) is understood to exclude the Main Stem,

and we conclude that it does. See Ali v. Fed. Bureau of Prisons,

Indian Reservation' means those lands as defined in [MIA]" in § 1722(f) of MICSA must mean that the Passamaquoddy Reservation includes lands and waters. It says that this creates a "fatal flaw" in our argument that § 1722(i)'s similarly worded definition of Penobscot Indian Reservation means only lands. We see no flaw, as the language used to describe the parcels included in the Passamaquoddy Indian Reservation is very different from the language used in the definition of Penobscot Indian Reservation. For example, the inclusion of "Indian Township in Washington County" in the definition of Passamaquoddy Indian Reservation, Me. Rev. Stat. Ann. tit. 30, § 6203(5), closely resembles the reservation of an "undivided tract of land described merely by exterior metes and bounds" that the Court has held includes "all of the land inside those boundaries including the river," Choctaw Nation, 397 U.S. at 628.

- 47 - 552 U.S. 214, 222 (2008) ("[O]ur construction . . . must, to the

extent possible, ensure that the statutory scheme is coherent and

consistent."). The dissent insists that the "Penobscot Indian

Reservation" defined in § 6203(8) must have a meaning consistent

with the "Indian reservation[]" used in § 6207(4), but, as we have

explained, the dissent's interpretation would create an

inconsistency within § 6203(8) itself. We cannot conclude, as the

dissent would, that the Settlement Acts' drafters intended to

override the text of § 6203(8) by implication when they used a

different term in a different section of MIA that applies to more

than one tribe. We presume that the drafters did not "hide

elephants in mouseholes." Whitman v. Am. Trucking Ass'ns, 531

U.S. 457, 468 (2001).

Despite our conclusion that § 6207(4) is still coherent

when Reservation is given its plain meaning, we agree with the

Nation and the United States that "Indian reservations" as used in

§ 6207(4) is itself ambiguous and that § 6207(4) grants the Nation

sustenance fishing rights in the Main Stem.23 We do not, as the

dissent says, hold that § 6207(4) must be read in this way. And

we do not agree that reading § 6207(4) this way means we must

23 This is a separate issue from whether Maine has violated the Nation's rights under § 6207(4). As we explain later, we do not reach the Nation's sustenance fishing claim because the Nation lacks standing and the claim is not ripe.

- 48 - deprive § 6203(8) of its plain meaning. The two provisions can

and do coexist.

Nothing in § 6207(4)'s use of the phrase "Indian

reservations" alters the plain meaning of § 6203(8). MIA itself

tells us this. Section 6203 says that the statute's definitions

do not apply when "the context indicates otherwise." Me. Rev.

Stat. Ann. tit. 30, § 6203. The Supreme Court has also held that

"context counts" and that "[t]here is . . . no 'effectively

irrebuttable' presumption that the same defined term in different

provisions of the same statute must 'be interpreted identically.'"

Env't. Def. v. Duke Energy Corp., 549 U.S. 561, 575–76 (2007)

(quoting United States v. Duke Energy Corp., 411 F.3d 539, 550

(4th Cir. 2005)); see also Nw. Austin Mun. Util. Dist. No. One v.

Holder, 557 U.S. 193, 207 (2009) ("[T]he statutory

definition . . . does not apply to every use of the term 'political

subdivision' in the Act."). The fact that § 6207(4) does not even

use the defined term "Penobscot Indian Reservation" and nowhere

indicates that "Indian reservations" incorporates § 6203(8)'s

definition provides even more evidence that the Nation's

sustenance fishing right is not necessarily limited to the

Section 6207(4) has meaning and that meaning is

consistent with our holding as to § 6203(8). Whether Congress was

aware or not that there are no places to fish on the Reservation's

- 49 - islands, § 6207(4) means that the Nation has the right to engage

in sustenance fishing in the Main Stem. That is a different right

than the ownership rights the Nation is asserting under § 6203(8).

Nothing in the legislative history indicates that the

drafters of the Settlement Acts intended to restrict the Nation's

existing right to fish in the Main Stem.24 To the contrary, their

aim was to strengthen it. The House and Senate Reports explain

that Maine previously recognized the Nation's "right to control

Indian subsistence hunting and fishing within their reservations"

and that § 6207(4) ends "[t]he power of [Maine] to alter" these

rights.25 See Senate Report at 16; House Report at 17-18.

Legislative history from the passage of MIA also confirms that the

drafters understood that the right to sustenance fish could be

exercised in the Main Stem. See Hearing on Legis. Doc. 2037 Before

the Joint Select Comm. on Indian Land Claims, 109th Leg., 2d Reg.

Sess. 55-56 (Me. 1980) (statement of Mr. Patterson that "the

contemplation of this draft was to keep in place that same kind of

right and provide that the Indians could continue to sustenance

24 The record is clear that some members of the Nation have relied on sustenance fishing for generations before the Settlement Acts were passed. 25 Before the Settlement Acts, Maine law said that the Commissioner of Inland Fisheries and Wildlife "shall issue a . . . fishing license to any [Penobscot] Indian." 1979 Me. Laws ch. 420 § 9(A). It also recognized the "right of Indians to take fish and wildlife for their own sustenance on their reservation lands." Id. § 9(B).

- 50 - hunt and fish"); id. at 120 (raising concern that the sustenance

fishing right would allow the Nation to cast a net "right across

these rivers [including the Penobscot River] and completely wipe

out . . . the spawning stock").

Given this context, we conclude that the drafters did

not intend for the phrase "Indian reservations," as used in

§ 6207(4) and applied to the Nation, to have the same meaning as

"Penobscot Indian Reservation." Under this interpretation, the

Settlement Acts give the Nation sustenance fishing rights in the

Main Stem even though the River and its submerged lands are not

part of the Reservation. There is no serious dispute about whether

the Settlement Acts give the Nation sustenance fishing rights in

the Main Stem. They do. The dispute here is over ownership of

the River and its submerged lands, and we have explained why we

have reached the interpretation we have.

B. The Nation's Assertion that Maine Has Infringed Its Sustenance Fishing Rights Is Not Ripe and the Nation Lacks Standing to Pursue That Claim.

We view differently the claim that Maine has infringed

those fishing rights and that infringement justifies the issuance

of a declaratory judgment. See Me. Rev. Stat. Ann. tit.

30, § 6207(4). The district court erred in issuing a declaratory

judgment because the Nation lacks standing to pursue this claim

and the claim is not ripe. "The requirements for a justiciable

case or controversy are no less strict in a declaratory judgment

- 51 - proceeding than in any other type of suit." Ala. State Fed'n of

Labor v. McAdory, 325 U.S. 450, 461 (1945). We vacate the district

court's ruling on this issue and order dismissal of the claim

without prejudice.

Article III of the Constitution limits federal courts'

jurisdiction to cases or controversies. See, e.g., Students for

Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 980

F.3d 157, 182–83 (1st Cir. 2020) (citing Warth v. Seldin, 422 U.S.

490, 498 (1975)). "The doctrines of standing and ripeness

'originate' from the same Article III limitation." Susan B.

Anthony List v. Driehaus, 573 U.S. 149, 157 n.5 (2014).

1. The Nation Does Not Have Standing to Pursue Its Claim That Maine Has Violated the Sustenance Fishing Rights Guaranteed to it Under MIA.

To have standing, a plaintiff must "have (1) suffered an

injury in fact, (2) that is fairly traceable to the challenged

conduct of the defendant, and (3) that is likely to be redressed

by a favorable judicial decision." Spokeo, Inc. v. Robins, 136 S.

Ct. 1540, 1547 (2016). The Nation has suffered no injury in fact.

An injury in fact is "'an invasion of a legally protected

interest' that is 'concrete and particularized' and 'actual or

imminent, not conjectural or hypothetical.'" Id. at 1548 (quoting

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)).

Sometimes, the threat of enforcement alone "may suffice as an

'imminent' Article III injury in fact." Reddy v. Foster, 845 F.3d

- 52 - 493, 500 (1st Cir. 2017) (quoting Susan B. Anthony List, 573 U.S.

at 158). The Nation argues that it has suffered an injury in fact

because the Schneider Opinion is a concrete and particularized

imminent threat to its sustenance fishing rights.

We see no imminent threat. The Schneider Opinion does

not even mention the Nation's sustenance fishing rights. It does

not prevent any tribal member from engaging in sustenance fishing.

Maine has not prevented any Nation member from engaging in

sustenance fishing. Indeed, Maine has a "long-standing policy of

not interfering with tribal members' sustenance fishing in the

Main Stem" and has represented to us that it has "no intention of

changing that policy." Under circumstances like these, when "a

future injury is 'too speculative for Article III purposes' and no

prosecution is even close to impending," a plaintiff lacks

standing. See Reddy, 845 F.3d at 500 (quoting Blum v. Holder, 744

F.3d 790, 799 (1st Cir. 2014)).

There is no support in the record for the Nation's claims

that the Schneider Opinion threatens its sovereignty or regulatory

authority. The cases cited by the Nation for the proposition that

tribes are granted special solicitude as sovereigns in the standing

analysis are also inapposite. In those cases, there was actual

harm to tribal members or people operating in tribal territory

that threatened the tribes' sovereignty. See Moe v. Confederated

Salish & Kootenai Tribes of Flathead Rsrv., 425 U.S. 463, 468-69,

- 53 - 469 n.7 (1976) (tribe had standing to challenge Montana's statutory

scheme for assessment and collection of personal property taxes

from tribe's members); White Mountain Apache Tribe v. Bracker, 448

U.S. 136, 139-40 (1980) (tribe had standing to challenge Arizona's

taxes on a logging company operating solely on an Indian

reservation when the tribe agreed to reimburse the company for

taxes it paid for its on-reservation activity). The Nation has

not shown that it faces an actual or imminent harm in this case.

2. The Nation's Claim That Maine Has Violated the Sustenance Fishing Rights Guaranteed to it Under MIA Is Not Ripe.

The Nation's claim is also not ripe. Our "[r]ipeness

analysis has two prongs: 'fitness' and 'hardship.'" See Reddy,

845 F.3d at 501 (citing Texas v. United States, 523 U.S. 296, 300-

01 (1998)). The fitness prong asks "whether the claim involves

uncertain and contingent events that may not occur as anticipated

or may not occur at all." Town of Barnstable v. O'Connor, 786

F.3d 130, 143 (1st Cir. 2015) (quoting Ernst & Young v. Depositors

Econ. Prot. Corp., 45 F.3d 530, 536 (1st Cir. 1995)). The hardship

prong is prudential and asks what harm would come to those seeking

relief if we withheld a decision. Reddy, 845 F.3d at 501 (citing

Labor Relations Div. of Constr. Indus. of Mass., Inc. v. Healey,

844 F.3d 318, 326 (1st Cir. 2016)).

Neither prong is met here. On the fitness prong, the

Nation's claim depends on uncertain or contingent events. There

- 54 - is no evidence that Maine has interfered with the Nation's

sustenance fishing rights or that it may do so in the future. Cf.

McInnis-Misenor v. Me. Med. Ctr., 319 F.3d 63, 72 (1st Cir. 2003)

("[T]hat the future event may never come to pass augurs against a

finding of fitness."). There is no concrete dispute before us.

The hardship prong is also not met. Our analysis

"focuses on 'direct and immediate' harm." Id. at 73. "[T]here is

no apparent prejudice to the plaintiffs if they must wait until

their claims ripen to sue" here because "[t]hey are not 'required

to engage in, or to refrain from, any conduct, unless and until'"

Maine either interferes with the Nation's sustenance fishing

rights or demonstrates an intent to do so. Reddy, 845 F.3d at 505

(quoting Texas, 523 U.S. at 301).

III.

The judgment of the district court is affirmed as to the

definition of "Penobscot Indian Reservation" under Me. Rev. Stat.

Ann. tit. 30, § 6203(8) and 25 U.S.C. § 1722(i) and vacated with

instructions to dismiss without prejudice for want of jurisdiction

as to the declaratory judgment regarding the sustenance fishing

rights under Me. Rev. Stat. Ann. tit. 30, § 6207(4). No costs are

awarded.

- Concurring and Dissenting Opinion Follows -

- 55 - BARRON, Circuit Judge, with whom THOMPSON, Circuit

Judge, joins, concurring in part and dissenting in part. The State

of Maine enacted the Maine Implementing Act ("MIA") in 1980 in

tandem with Congress's passage that same year of the Maine Indian

Claims Settlement Act ("MICSA"). Together, the measures sought to

settle then-pending litigation that had called into question,

among other things, the legal status of cessions of land "on both

sides of the Penobscot [R]iver" that the Penobscot Nation had made

first to Massachusetts, and then to Maine, in treaties around the

turn of the nineteenth century. The questions that we must resolve

in this appeal concern one aspect of the settlement that these

Acts brought about -- the nature of the rights in certain waters

of the Penobscot River that the Nation would continue to enjoy.

I agree with the majority that the Settlement Acts, in

effectively blessing the Penobscot Nation's long-ago transfers of

land beyond the banks of the river, did not leave the Nation with

nothing in return as to the waters in between. In particular, I

agree with the majority that those Acts secure to the Nation a

limited right that entitles its members to fish in those waters

for their own sustenance. But, I cannot agree with the majority's

further and more consequential conclusion that the Acts give the

Nation no further rights in those waters.

The majority arrives at this result by narrowly

construing the provision in the Acts that purports to define the

- 56 - "Penobscot Indian Reservation" so that it excludes altogether the

waters of the Penobscot River. The consequence is that the

sovereign rights to regulate the taking of wildlife that the

Settlement Acts expressly entitle this riverine Nation to exercise

throughout its "Reservation" extend to no portion of the Penobscot

River itself.

Yet, as I will explain, the statutory text does not

compel such a landlocked construction of the "Penobscot Indian

Reservation." In fact, a different provision of the same statute

that defines the "Reservation" expressly describes the

"boundaries" of the "Penobscot Nation . . . Indian reservation[]"

in terms that even the majority agrees include the portions of the

Penobscot River that are in dispute. See Me. Rev. Stat. Ann. tit.

30, § 6207(4).

The problem with the majority's narrow construction,

however, runs deeper still. The Settlement Acts were intended in

significant part to make up for the fact that the Nation had

entered into the treaties at the heart of the underlying disputes

over land transfers without the federal authorization that

Congress had early on required in the Trade and Intercourse Act of

1790 ("the Nonintercourse Act"), see 25 U.S.C. § 1721(a)(1), to

protect tribes from states swindling them.26 After all, it was the

26 In Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975), this Court confirmed that

- 57 - lack of any such congressional authorization for those treaties

that led the Nation to assert that the land transfers that it had

made in them were without legal effect, thereby precipitating the

title disputes that the Settlement Acts aimed to resolve. It is

thus tragically ironic, in my view, that the majority now construes

the Acts to leave the Nation with even fewer sovereign rights in

the river that has been its lifeblood than it had reserved for

itself in its own unprotected dealings with those two states so

early on in our history.

Moreover, precisely because text, history, and purpose

undermine the notion that the definition of the Nation's

"Reservation" in the Settlement Acts clearly excludes the waters

at issue, longstanding principles of interpretation require that

we construe that definition to include those waters. For, those

principles require that we resolve an ambiguity on that score in

the Nation's favor, see County of Yakima v. Confederated Tribes &

Bands of the Yakima Indian Nation, 502 U.S. 251, 269 (1992), and,

at the very least, we confront such an ambiguity here.

the Nonintercourse Act applied to the Passamaquoddy Tribe and created a trust relationship between the United States and that tribe. See id. at 373. The Penobscot Nation's land claims preceding the MICSA were premised on the theory -- which is not challenged here -- that the same would be true of the Penobscot Nation. See Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F. Supp. 649, 654 n.6 (D. Me. 1975).

- 58 - I.

The MICSA provides that the "'Penobscot Indian

Reservation' means those lands as defined in the [MIA]." 25 U.S.C.

§ 1722(i). The MIA in turn provides that the

"Penobscot Indian Reservation" means the islands in the Penobscot River reserved to the Penobscot Nation by agreement with the States of Massachusetts and Maine consisting solely of Indian Island, also known as Old Town Island, and all islands in that river northward thereof that existed on June 29, 1818, excepting any island transferred to a person or entity other than a member of the Penobscot Nation subsequent to June 29, 1818, and prior to the effective date of this Act.

Me. Rev. Stat. Ann. tit. 30, § 6203(8).

The ultimate question that we must decide on appeal, in

light of these two provisions, is a relatively discrete one of

statutory interpretation. It concerns whether the definition of

the "Penobscot Indian Reservation" in § 6203(8) of the MIA

encompasses only the uplands of the individual islands to which it

refers -- which is all the majority concludes that it includes --

or also the whole of the area comprising the uplands of those

islands, waters included -- which is what the Penobscot Nation

contends that it does.27

27 In construing the Settlement Acts, we have held that because the MICSA adopted the MIA, interpretative questions about provisions of the MIA are federal questions. See Penobscot Nation v. Fellencer, 164 F.3d 706, 708 (1st Cir. 1999) (explaining that "[b]ecause the phrase 'internal tribal matters' was adopted by the federal Settlement Act, the meaning of that phrase [which does not

- 59 - Before answering that question, however, it helps to

clarify more precisely what is at stake in this interpretive

dispute, as there appears to be some confusion on that point.

Critical to sorting out that confusion is a recognition that

§ 6203(8) of the MIA, by its own terms, is definitional rather

than substantive. It only purports to define, in other words,

what the term "Penobscot Indian Reservation" in the Settlement

Acts themselves -- when used elsewhere in them -- means. It does

not itself purport to establish a reservation in the typical sense.

This fact is significant. In consequence of it, the

meaning assigned to "Penobscot Indian Reservation" in § 6203(8) of

the MIA must be understood in connection with the concrete rights

and authorities that the Settlement Acts themselves provide that

the Penobscot Nation enjoys within what those same Acts call the

Nation's "Reservation." As a result, the lengthy arguments of the

State of Maine and the Intervenors that "ownership" of the relevant

stretch of the river, including its submerged lands, is at issue

in this appeal are, in the end, a distraction. Whatever claims

the Penobscot Nation might have in that regard, the Nation seeks

here to prove with respect to the definition of the "Penobscot

appear in the MICSA itself] raises a question of federal law"). Accordingly, although § 6203(8) of the MIA is itself a provision of state law, the parties do not dispute that its meaning is a question of federal law such that we have jurisdiction under 28 U.S.C. § 1331.

- 60 - Indian Reservation" in § 6203(8) of the MIA only that the

definition is broad enough to ensure that, when it is plugged into

the substantive provisions of the MIA that are keyed to it, the

Nation will have the same right to regulate hunting and trapping

in the waters in that stretch of the river that the Nation

generally has under those same substantive provisions within the

boundaries of the "Penobscot Indian Reservation."28

Having clarified that much up front, though, there is

still one further threshold point to address. It concerns the

interpretive resources that we may draw upon to decide how best to

determine whether the definition of the term "Penobscot Indian

Reservation" in § 6203(8) of the MIA refers to the relevant waters

or only to the uplands located in them. I thus begin my analysis

there, as a consideration of this question of interpretive method

demonstrates, in my view, the errors in the majority's rationale

for its lead holding, in which the majority gives this definition

in § 6203(8) of the MIA a narrow, uplands-only construction.

A.

The majority explains that in construing the definition

of the "Penobscot Indian Reservation" in § 6203(8) of the MIA we

may not draw upon what history shows about the Penobscot Nation's

28 For that reason, I do not consider the argument that adjudication of the ownership of the river would require joinder of riverfront landowners or that fee simple title in the river is owned in trust by the State.

- 61 - past understandings regarding its rights in the waters at issue.

The majority further explains that in construing that definitional

provision we may not rely on any of the canons of construction

relating to Indian tribes.

In the majority's view, we must labor under these

interpretive constraints because this statutory provision's text

-- given the ordinary meaning of the words in it -- in and of

itself compels an uplands-only reading. The majority emphasizes

that a statute's words should be given their ordinary meaning if

the legislature does not define them. See Maj. Op. 11-12, 11 n.5.

It then asserts that the ordinary meaning of the word "islands" in

§ 6203(8) of the MIA -- and "lands" in the provision of the MICSA

that cross-references that provision of the MIA -- conveys an

uplands-only, not a waters-inclusive, understanding. Maj. Op. 12-

13. Thus, the majority concludes, because neither the word

"islands" nor the word "lands" is defined in either the MIA or the

MICSA, the ordinary, water-less meaning of "islands" and "lands"

controls.

The majority finds additional support for this

dictionary-based reading of the relevant statutory text in the

fact that the Settlement Acts do not use a single geographic name

for the islands referred to in § 6203(8). Nor, the majority points

out, do those Acts describe the islands at any point with reference

to any words that require the islands to be treated as a collective

- 62 - -- and thus as an area including the surrounding waters -- rather

than as individual land masses. See Maj. Op. 17.

The majority does address the contention that the

qualifier "reserved to the Penobscot Nation by agreement" in

§ 6203(8) of the MIA suggests that we should set the dictionary

aside and consult history to discern whether what had been

"reserved . . . by agreement" encompasses any of the waters that

surround the islands' uplands. Maj. Op. 21-22. The majority

concludes, however, that the text of § 6203(8) makes perfectly

clear that the "islands" to which that definitional provision is

referring are only those that the "consisting" phrase within that

same provision describes them to be. See Maj. Op. 22-23.

The majority explains in this regard that the word

"islands" is used in that phrase in conjunction with the words

"solely" and "in the Penobscot River," and it concludes that those

two modifiers themselves support a dictionary-based (and thus, in

the majority's view, uplands-only) understanding of "islands."

See Maj. Op. 13-14, 17. In fact, the majority asserts, the word

"islands" in § 6203(8) of the MIA would have to bear two distinct

meanings in the same provision -- one including waters and one not

-- for the area-based construction of § 6203(8) of that statute

for which the Nation advocates to be a viable one. See Maj. Op.

25-26.

- 63 - B.

The majority is right that we have no warrant to rely on

extra-textual interpretive aids to construe the definition in

§ 6203(8) of the MIA if that text is as clear as the majority

concludes that it is. But, even when a statute uses words that on

their own bear an ordinary meaning that is plain, there may still

be ambiguity as to whether it is plain that those words should be

given that ordinary meaning. See Yates v. United States, 574 U.S.

528, 537 (2015) ("Whether a statutory term is unambiguous . . .

does not turn solely on dictionary definitions of its component

words. Rather, '[t]he plainness or ambiguity of statutory language

is determined [not only] by reference to the language itself, [but

as well by] the specific context in which that language is used,

and the broader context of the statute as a whole.'" (alterations

in original) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 341

(1997))); see also Antonin Scalia & Bryan A. Garner, Reading Law:

The Interpretation of Legal Texts 70 (2012) ("One should assume

the contextually appropriate ordinary meaning unless there is

reason to think otherwise . . . . which ordinarily comes from

context."); id. at 73 ("Sometimes context indicates that a

technical meaning applies.").

Thus, even if the majority is right that the words

"lands" and "islands" in isolation bear an ordinary meaning that

plainly excludes waters offshore, we still must assess whether

- 64 - those words carry their ordinary meanings here, given the specific

way in which those words are used in the statutory provisions at

hand. In my view, there is good reason to conclude from the text

of § 6203(8) of the MIA alone that those words do not.

1.

For starters, the word "islands" appears in § 6203(8) of

the MIA only as a constituent part of a larger phrase. See Bostock

v. Clayton County, 140 S. Ct. 1731, 1750 (2020). That larger

phrase, moreover, refers to a specific group of islands both for

the purpose of defining where as part of a settlement of rights to

land and natural resources the Nation may exercise certain

sovereign rights and in terms of what had been "reserved to the

Penobscot Nation by agreement," Me. Rev. Stat. Ann. tit. 30,

§ 6203(8).

The plain text of § 6203(8) of the MIA in these ways

supplies a reason why the word "islands" as it appears in this

context might not mean what it ordinarily would if it were

considered on its own. That being so, the same is necessarily

also true of the word "lands." That word, after all, appears in

the provision of the MICSA that directs the reader to § 6203(8) of

the MIA to find the definition of the "Penobscot Indian

Reservation."29

29 No party has argued on appeal that we should understand the fact that this provision of the MICSA refers to "those lands

- 65 - Precedent from the Supreme Court of the United States

supports the conclusion that the features of the text of § 6203(8)

of the MIA that I have just described render that provision more

ambiguous in the relevant respect than the majority allows. On

more than one occasion, the Court has held that reservation-

defining statutes refer to waters despite their failure to make

any express reference to those waters and despite their use of

geographic terms that, in and of themselves, ordinarily might be

understood to refer to dry land only.

For example, in Alaska Pacific Fisheries v. United

States, 248 U.S. 78 (1918), the Court considered a statute that

defined a reservation as consisting of "the body of lands known as

Annette Islands" and held that, textually speaking, that larger

phrase arguably could refer to "the area comprising the islands"

-- and thus an area inclusive of waters -- rather than only to the

uplands in that area. Id. at 86-89. For that reason, the Court

determined, only an inquiry into sources beyond those that would

merely disclose the ordinary meaning of the words "lands" or

"islands" could reveal the intended meaning of the larger phrase

in which those words were embedded. See id. at 87.30

as defined in the [MIA]," 25 U.S.C. § 1722(i) (emphasis added), to limit the definition in § 6203(8) of the MIA. 30 The majority notes, Maj. Op. 16, that Alaska Pacific Fisheries concerns Alaska and that, as the Supreme Court just observed, "[t]he 'simple truth' . . . is that 'Alaska is often the exception, not the rule.'" Yellen v. Confederated Tribes of the

- 66 - Similarly, in Hynes v. Grimes Packing Co., 337 U.S. 86

(1949), the Court held that the statutory phrase "any other public

lands which are actually occupied by Indians or Eskimos within

said Territory" did not, in consequence of the ordinary meaning of

the word "lands" alone, resolve whether the reservation that it

purported to define included coastal waters. See id. at 91-92,

110-11. Thus, the Court there, too, concluded that only a broader

consideration of legislative purpose, as informed by the history

of how the native peoples interacted with those waters, could

resolve whether the phrase invoking the word "lands" did or did

not include those waters. Id. at 115-16.31

The Court later explained in Amoco Production Co. v.

Village of Gambell, 480 U.S. 531 (1987), that an extra-textual,

historically informed inquiry was proper in each of those earlier

cases precisely because the reservation-defining statute had in

Chehalis Rsrv., ___ S. Ct. ___, 2021 WL 2599432, at *3 (2021) [No. 20-543] (quoting Sturgeon v. Frost, 577 U.S. 424, 440 (2016)). But, there is no suggestion in Alaska Pacific Fisheries, Confederated Tribes of the Chehalis Reservation (which does not reference Alaska Pacific Fisheries), or any case in between that would provide a basis for concluding that the Court would find the relevant text in the statute set forth in Alaska Pacific Fisheries to exclude the waters surrounding the Annette Islands if that collection of islands happened to have been located somewhere other than Alaska. 31 True, Hynes is also a case from Alaska, but not even the majority suggests that its state of origin was what made the relevant phrase there not susceptible of being construed with only a dictionary as an aid.

- 67 - each instance used a phrase that, despite the common geographic

terms embedded therein, had no "precise geographic/political

meaning[] which would have been commonly understood, without

further inquiry, to exclude the waters." Id. at 547 n.14.

Accordingly, the Court determined that, given the larger phrase

used, fidelity to text had required in each case the conclusion

that "[t]he meaning of the phrase[] had to be derived from [its]

context in the statute[]." Id.

Against that precedential backdrop, the fact that we

confront here not just the word "islands" -- or "lands" -- but a

larger phrase referring to a specific set of "islands" should give

us some reason to pause before we turn to the dictionary's

definition of those discrete words to discern the meaning of that

larger phrase. As in Alaska Pacific Fisheries and Hynes, the

phrase that matters here is configured in a way that at least

raises the question whether it refers to an area inclusive of

waters, despite the fact that the only geographic terms used in

connection with that phrase are "islands" and "lands." That is

not because we have no choice but to conclude that the word

"islands" is itself being used -- unusually -- as a "term of art."

See Maj. Op. 21-22. It is because we are construing a larger

phrase, of which "islands" is just a key part, and not that word

on its own.

- 68 - Consider that, like the reference to "Annette Islands"

in Alaska Pacific Fisheries, the reference to "islands" in the

relevant phrase here concerns a discrete and definable grouping,

rather than a disparate assortment, of land masses that is located

in one continuous and discernable stretch of waters. For this

reason, geographic reality no more rules out an area-based reading

of the relevant phrase than it did in Alaska Pacific Fisheries.

Consider also that, like the statute in Alaska Pacific

Fisheries, this one refers to the "islands" as an undifferentiated

group -- "all islands" -- without purporting to distinguish which

among them are "the site of [the tribe's] village[s], or the

island[s] on which they were dwelling," Alaska Pac. Fisheries, 248

U.S. at 89. For this reason as well, the text is arguably

suggestive of an area comprising the islands, waters included.32

There is, however, yet one more reason to be wary of

reaching too quickly for the dictionary -- and thus looking at no

32 The United States argues that "islands" could be broader than the discrete uplands because, under Massachusetts and Maine common law, island estates ordinarily included submerged lands and associated rights to riverine resources -- thus, with respect to any individual island, there may be an ambiguity at least as to whether it would include submerged lands to the thread of the river. The State challenges this understanding of the relevant common law. In light of Alaska Pacific Fisheries, and for the reasons set forth below, I find that "islands in the Penobscot River reserved to the Penobscot Nation by agreement" is sufficiently susceptible of an area-based understanding that it is not necessary to reach this dispute about what each individual island may include in terms of attendant waters under state common law.

- 69 - other extra-textual source -- to determine the meaning of § 6203(8)

of the MIA with respect to the uplands/waters issue. As I have

mentioned, the larger phrase that we are concerned with in that

provision specifies that it is referring to what was "reserved to

the Penobscot Nation by agreement with the States of Massachusetts

and Maine." That same phrase then goes on to reference a specific

date in 1818 in defining what was "reserved," and that date, of

course, is the one on which the Penobscot Nation signed the

"treaty" with Massachusetts in which the Nation purported to cede

the lands "on both sides of the . . . river" while keeping "all

the islands" in the relevant stretch of the river. Treaty Made by

the Commonwealth of Massachusetts with the Penobscot Tribe of

Indians, June 29, 1818, in Acts and Resolves Passed by the Twenty-

Third Legislature of the State of Maine, A.D., 1843, at 253, 253-

54 (Augusta, Wm. R. Smith & Co. 1843) [hereinafter 1818 Treaty].

Quite obviously, no dictionary can reveal the nature of

an earlier agreed-to reservation between specific historically

rooted sovereign actors, see Amoco Prod. Co., 480 U.S. at 547 n.14,

just as no dictionary could have given content to the use-based

qualifier that the relevant statute in Hynes included. Given that

the "Reservation" here concerns a group of islands in a stretch of

water that marks out a cohesive area in its own right, there is no

reason rooted in fidelity to text that would require us to construe

the phrase as if the terms of, and understandings about, that prior

- 70 - agreement are wholly beside the point insofar as those terms and

understandings would support an area-based rather than uplands-

only construction. Rather, the text would seem rather strongly to

suggest that the drafters intended to give effect to these very

understandings in § 6203(8) even if they would support such an

area-based construction. Indeed, even Maine adamantly took the

position in earlier litigation that a proper determination of the

"Reservation" necessarily "involves analysis of the relevant

treaties referenced in the Reservation definitions in the [MIA]

including the historical transfers of Reservation lands and

natural resources." Brief of Petitioner State of Maine at 58,

Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007) (Nos. 04-1363, 04-

1375) (emphases added).

2.

For all these reasons, the majority's uplands-only

construction of § 6203(8) -- rooted as it is in a claim about the

limited, dictionary-based interpretive method that we must use --

is less clearly one that the text in and of itself compels than

the majority contends. That is especially so when one recognizes

that the majority's construction is hard to square with standard

interpretive practices, because it appears to attribute no

independent meaning to the phrase "reserved . . . by agreement."

As we have seen, the majority appears to treat the

"reserved . . . by agreement" qualifier as if it were superfluous.

- 71 - In fact, because that qualifier precedes the "consisting" phrase,

§ 6203(8) changes not a bit in the majority's view if the qualifier

is omitted.33

We are generally loath, however, to treat statutory

words as wasted. Nor would there appear to be any special reason

to conclude that the words to which the majority assigns no import

here are ones that need not have been included at all.

Those words appear alongside the provision's express

reference to the 1818 date. That is the date of an agreement

excluding "all islands" in the river from the cessions of lands

"on both sides of" it that the Nation had purported to make. The

joint inclusion of the reference to islands that had been

"reserved . . . by agreement" and the date of a past agreement

33 The majority asserts that the qualifier is necessary to clarify that islands transferred by the Nation prior to 1818 are not part of the Penobscot Indian Reservation. Maj. Op. 23-24, 23 n.11. The majority does not assert, however, that any island was transferred by the Nation before 1818, and the 1818 treaty's "covenant . . . that [the Nation] shall have, enjoy and improve . . . all the islands in the Penobscot river above Oldtown and including said Oldtown island," 1818 Treaty, supra, at 254, suggests that there had been no such transfer, at least in the relevant stretch of the river. If any island not in that stretch of the river had been transferred before that date, § 6203(8) would already exclude that island by virtue of the "consisting solely" phrase. The "reserved . . . by agreement" language thus would not in that event be necessary to make that exclusion clear. Aside from the counterfactual nature of the majority's explanation of the function of "reserved . . . by agreement," it would be strange in light of the drafters' explicit exclusion of post-1818 transfers to conclude that the drafters effected the exclusion of pre-1818 transfers in such an oblique way.

- 72 - making a reservation involving those very islands surely provides

some reason to think that the ordinary meaning of "islands" might

not be an entirely reliable guide to § 6203(8)'s meaning insofar

as the agreement that had been struck by the Nation on that date

reflected a different understanding of what the Nation had reserved

than the dictionary definition of "island" would supply. And, as

I have noted, Maine itself once read the text in just this

historically informed manner, taking the position that the

definition of the "Penobscot Indian Reservation" in § 6203(8) of

the MIA had to be construed in light of the understandings of the

parties to the 1818 treaty and not without considering them at

all.

Perhaps, then, the initial phrase in § 6203(8) of the

MIA, which contains this backward-looking qualifier about what had

been agreed to in the past, is best construed to have been intended

to give effect to the outcome of an agreement as the parties to it

understood it when it was struck centuries before. True, the

definition does not just end with the reference to what had been

"reserved . . . by agreement." It goes on to include the trailing

"consisting" and "excepting" phrases. But, the inclusion of those

phrases hardly compels a reading that would make the reference to

the prior agreement of no import. Instead, those phrases may

comfortably be read to be usefully clarifying -- just as

settlements of disputes over the meaning of old agreements often

- 73 - do -- critical details concerning what the parties to the

settlement that the Settlement Acts effected understood to have

been reserved in the earlier treaty.

Indeed, a comparison of the 1818 treaty and § 6203(8) of

the MIA reveals that the drafters of the MIA merely revised the

more encompassing "including" phrase of that treaty by

substituting for it the more limiting "consisting solely" and

"excepting" phrases. By doing so, they accounted for post-treaty

developments (whether man-made or naturally occurring) that

obviously could not have been known in 1818. They thus ensured

through that revision of the treaty's language that § 6203(8) of

the MIA would account for matters that -- given their late-breaking

nature -- cannot have been understood to have been carefully

considered by the treaty parties at that earlier time.

Of course, even on this reading of § 6203(8), the

question would remain as to whether the larger phrase containing

"the islands" in § 6203(8) of the MIA is referring to merely the

uplands in the area demarcated by those "islands" or to the area

comprising them and thus the waters in that area, too. The text

of this provision -- at least in and of itself -- cannot be said

to resolve that question conclusively in the Nation's favor, even

if it might be so read. It all would depend, even on such a

historically informed reading, on what the parties to the 1818

- 74 - treaty understood to have been "reserved . . . by agreement" way

back when.

But, I do note that an area-based reading does give a

meaningful role to the "reserved . . . by agreement" language that

the majority's uplands-only reading does not. It reads that

language to have been included because the drafters were intent on

capturing past understandings arising from past dealings. For

this reason, too, the "reserved . . . by agreement" language

should warn the reader away from an ahistorical, dictionary-based

understanding of what is meant by "islands."

I recognize that the majority contends that the

"consisting" phrase's own text in and of itself rules out an area-

based reading, no matter what the history of past dealings might

show. The majority explains that this is so in part because the

word "solely" in that phrase compels the conclusion that the

drafters of § 6203(8) of the MIA intended to debar the islands'

surrounding waters from being within the "Reservation." See Maj.

Op. 14.

But, I cannot agree with that analysis. The word

"solely," given its placement, is, as a matter of grammar, merely

narrowing the general set of "islands" that precedes it to a

smaller set of "islands" that are thereafter described. It thus

cannot be specifying an uplands-only rather than area-based

understanding of "islands" any more than the use of the word

- 75 - "solely" in the phrase "ship the bikes that had been ordered,

consisting solely of the bikes in storage" could be read to be

sorting between bikes that have baskets and those that do not.

And that is especially so because the group of islands described

after "solely," like the group of islands described before that

term, is a group that, by virtue of how the islands are situated

relative to one another, may easily be understood to demarcate an

area comprising the islands.

Nor can I agree with the majority's related contention

that the phrase "in the Penobscot River" requires an uplands-only

reading. Maj. Op. 13-14. The reference to the islands "in the

[river]" running from a southward point A to a northward point B

is easily read to be merely part and parcel of the effort, partly

carried out by the "consisting" phrase, to demarcate the bounds of

the area as a whole, rather than to distinguish between the land

masses and the surrounding waters within that area.

That leaves, then, only the majority's assertion that an

area-based reading impermissibly requires that we give the word

"islands" two distinct meanings in the same provision -- one

referencing an area that includes waters and another referencing

uplands alone. Maj. Op. 25-26. But, I do not see how such a

reading does so.

The two phrases in § 6203(8) of the MIA that use that

same word "islands" comfortably may be understood to be working

- 76 - together to specify the area comprising the "islands." The

"islands" referenced each time are ones that are grouped together

in a continuous stretch of water and that are expressly referred

to only in connection with the 1818 "agreement" that "reserved"

them to the Nation. The latter phrase does, on such a reading,

demarcate the area in a way that the former on its own does not.

But, that does not mean the latter is not referring to an area

just as the former is.

In fact, the "excepting" phrase that then follows

accords with this same understanding -- even though, of course, it

does not compel it. Unlike the phrases that contain the two prior

references to "islands," the "excepting" phrase refers to "any

island" that has certain specified attributes and so does not refer

to the group of "islands" previously referenced at all. The

singular-form reference to "any island" in the "excepting" phrase

thus may be read to suggest that any discrete land mass with the

attributes denominated -- that is, any individual land mass in

that area that had been "transferred to a person or entity other

than a member of the Penobscot Nation subsequent to June 29, 1818,

and prior to the effective date of this Act," Me. Rev. Stat. Ann.

tit. 30, § 6203(8) -- is being excepted from the area comprising

the "islands" already mentioned.

In this respect, the text admits of being read much as

an admittedly stilted advertisement for "a tour of the U.S. Virgin

- 77 - Islands, consisting solely of all those islands excepting the

island of Saint Croix" might be. Such an advertisement is easily

read to suggest that the tour will be of the entirety of the

waters-inclusive area comprising the U.S. Virgin Islands, though

not of the one particular upland portion of it that has been

expressly excluded.

Finally, I realize that, as the majority notes,

§ 6203(8) of the MIA was amended in 1988 to add to the definition

of "Penobscot Indian Reservation" certain parcels of land

"acquired by the Penobscot Nation from Bangor Pacific Hydro

Associates as compensation for flowage of reservation lands by the

West Enfield dam." 1988 Me. Laws 1300. I also realize that the

majority stresses that the compensation is only for flowage and

not for the construction of a dam on the submerged lands of the

Main Stem, which is the part of the Penobscot River that contains

the waters in dispute.34 Maj. Op. 30. The District Court relied

on this amendment too, for the distinct point that it supports

reading § 6203(8) of the MIA to include only the uplands given

that, if the "Reservation" included the relevant waters of the

Main Stem, flowage would not result in the loss of reservation

space. See Penobscot Nation v. Mills, 151 F. Supp. 3d 181, 217

n.42 (D. Me. 2015).

34 The dam was built in 1894 in the Penobscot River above Old Town.

- 78 - But, the Penobscot Nation, like anyone, has different

uses for uplands and waters, and the loss of an upland area is

still a loss even if the flowage remains part of the "Reservation."

The amendment makes sense, therefore, even if § 6203(8) of the MIA

is read to mean the relevant area as a whole -- especially given

the limited nature of the rights to regulate hunting and trapping

in the waters in the area at issue that the Penobscot Nation

contends that it would enjoy, at a minimum, if the "Reservation"

does not exclude those waters altogether.

3.

For all these reasons, then, the text of § 6203(8) of

the MIA itself may be read to be making a less-than-generic

reference to the "islands" no less than the text in the

reservation-defining statute in Alaska Pacific Fisheries. That

said, there are textual differences between § 6203(8) of the MIA

and the provision at issue in Alaska Pacific Fisheries, just as

there are textual differences between § 6203(8) of the MIA and the

provision at issue in Hynes.

I do not disagree that those differences supply some

reason to hesitate before relying on those cases to find the kind

of ambiguity here that would permit us to do what the Court did in

each of those earlier cases: look beyond a dictionary to history

and context to determine what was intended. But, as I will next

explain, in light of the potential ambiguity in § 6203(8) of the

- 79 - MIA, we cannot look to that provision alone to determine whether

its text is ambiguous. We must at least consider that provision's

text in the context of the text of the other provisions of the

Settlement Acts. See Maj. Op. 43-45. And, when I consider one

such provision, § 6207(4) of the MIA, any hesitancy that I might

have about finding § 6203(8) to be ambiguous in the relevant

respect dissipates. For, once that provision is brought into view,

the textual case for reading § 6203(8) to be referring to the area

comprising the islands "reserved . . . by agreement" rather than

only to the uplands of the islands in that area is at the very

least strong enough to render the provision unclear as to whether

that area-based, waters-inclusive understanding is to be

preferred.

C.

Section 6207 of the MIA addresses the control over

wildlife resources that the Penobscot Nation retains in Indian

territory, including as to the part of such territory that is

itself within the "Penobscot Indian Reservation."35 As a discrete

provision within that larger section, § 6207(4) addresses just one

aspect of that control. It states that "the members of the

35 In the Settlement Acts, Penobscot "territory" is not coextensive with the "Reservation." The latter refers to only the area set forth in § 6203(8). The former covers both the "Reservation" area and a number of other areas throughout Maine. Me. Rev. Stat. Ann. tit. 30, §§ 6203(9), 6205(2).

- 80 - Passamaquoddy Tribe and the Penobscot Nation may take fish, within

the boundaries of their respective Indian reservations, for their

individual sustenance." Me. Rev. Stat. Ann. tit. 30, § 6207(4).36

The reason that § 6207(4) of the MIA is so significant

for present purposes is that the "Penobscot Nation . . . Indian

reservation[]" to which this provision refers must be understood

-- at least when read in context -- to include the area comprising

the islands at issue in this case, waters included, rather than

merely the discrete uplands that are situated in that area. See

Maj. Op. 48-51.

This conclusion follows from the District Court's

factual finding, accepted by all parties to this appeal, that

"[n]one of [the uplands of] those islands contains a body of water

in which fish live." Penobscot Nation, 151 F. Supp. 3d at 186.

In light of that finding, an interpretation of § 6207(4) of the

MIA that permits fishing only from the uplands is an untenable

one. Given the "long-accepted practice of Penobscot Nation members

sustenance fishing [from boats] in the Main Stem," id. at 220, and

how ill-suited the uplands are to that practice, this sustenance

fishing provision would have no practical meaning as to the

36 With the passage of the MIA, Maine repealed a state law that had established "the right of Indians to take fish and wildlife for their own sustenance on their own reservation lands." Me. Rev. Stat. Ann. tit. 12, § 7076(9)(B) (emphasis added), repealed by 1979 Me. Laws 2409.

- 81 - Penobscot Nation if the "reservation[]" to which it refers

encompassed only those uplands.

But, precisely because § 6207(4) of the MIA must be so

understood despite the ambiguities that its text alone might

contain -- as even the majority agrees, Maj. Op. 4837 -- I do not

37 The majority does point out that § 6207(4) refers to the "reservations" of the Penobscot Nation and the Passamaquoddy Tribe. Maj. Op. 46-47. But, the plain text of that provision specifically provides that members of the Penobscot Nation and the Passamaquoddy Tribe "may take fish[] within the boundaries of their respective Indian reservations." Me. Rev. Stat. Ann. tit. 30, § 6207(4) (emphasis added). This language is much more specific than the similar state law provision that was repealed with the enactment of the MIA. See Me. Rev. Stat. Ann. tit. 12, § 7076(9)(B) (establishing "the right of Indians to take fish and wildlife for their own sustenance on their own reservation lands" (emphasis added)). Moreover, the legislative history makes clear that sustenance fishing in the Penobscot River, not merely within the Passamaquoddy Indian Reservation, was an issue of concern. See, e.g., Penobscot Nation, 151 F. Supp. 3d at 191 (citing discussions of salmon fishing in the Penobscot River). In addition to these reasons to think that § 6207(4) cannot be understood to have meaning only as to the Passamaquoddy Tribe, there is another. The majority's conclusion that the Settlement Acts are "coherent and consistent" if "Reservation" in § 6203(8) excludes waters and that term is given a consistent meaning throughout the Settlement Acts depends on § 6207(4) having meaning as applied to the Passamaquoddy Tribe. See Maj. Op. 46-47. But, it has such meaning only if there are areas within the Passamaquoddy Indian Reservation where members of the Passamaquoddy Tribe can engage in sustenance fishing. Assuming as the majority must for this argument about § 6207(4) that such areas do exist, there then becomes a fatal flaw in the majority's argument that "lands" in § 1722(i) of the MICSA excludes water. See Maj. Op. 13, 18 n.8, 44. That is because "lands" in § 1722(f), the identically worded MICSA provision that incorporates the MIA's definition of "Passamaquoddy Indian Reservation," would then have to refer to an area including waters. Yet, if "lands," standing alone, is waters-inclusive in § 1722(f), how can that same word, in an identical phrase, "reinforc[e]," Maj. Op. 13, a waters-

- 82 - see how the text of the MIA alone makes clear that § 6203(8) of

that same statute is referring only to the uplands and not to the

area comprising the islands. To so conclude, one would have to

think it clear that the drafters of the MIA did not intend in

referring to the "Penobscot Nation . . . Indian reservation[]" in

§ 6207(4) to have in mind the "Penobscot Indian Reservation" that

§ 6203(8) defines. But, how could we be certain of that? See

Sullivan v. Stroop, 496 U.S. 478, 484 (1990) (explaining that we

presume that "identical words used in different parts of the same

act are intended to have the same meaning" (quoting Sorenson v.

Sec'y of the Treasury, 475 U.S. 851, 860 (1986))).

The majority is right, see Maj. Op. 49, that § 6203 of

the MIA expressly states that the definitions that follow in the

various subsections of that provision apply "unless the context

indicates otherwise," Me. Rev. Stat. Ann. tit. 30, § 6203. But,

that provision obviously does not command that every term defined

in § 6203 of the MIA must be given a variant meaning at some point.

Nor does the majority explain what "reservations" in

§ 6207(4) of the MIA would mean if it does not refer to the

definitions of "Passamaquoddy Indian Reservation" and "Penobscot

Indian Reservation" in § 6203(5) and § 6203(8), respectively. The

absence of any such explanation is especially conspicuous given

excluding reading of the Settlement Acts' definition of "Penobscot Indian Reservation"?

- 83 - that other provisions of the MIA in fact support reading "Indian

reservation[]" in § 6207(4) to have the same meaning as "Penobscot

Indian Reservation" in § 6203(8).38

The principle that elephants do not hide in mouseholes

also would appear to counsel against the conclusion that the

drafters of the MIA chose silently to refer to the Penobscot Indian

Reservation in two fundamentally inconsistent ways. The term

"Penobscot Indian Reservation" is of special importance to the

statutory scheme, and, as we will see, sustenance fishing rights

were central to the settlement discussions that led to the passage

of the Settlement Acts. It would not have gone unnoticed that the

38 In § 6209-B of the MIA, which explains the jurisdiction of the Penobscot Nation Tribal Court, the statute refers to "[c]riminal offenses . . . committed on the Indian reservation of the Penobscot Nation" and to application of laws "within the Penobscot Indian reservation" (both without capitalizing "reservation"). Me. Rev. Stat. Ann. tit. 30, § 6209-B(1). By all indications, § 6209-B(1) uses "Indian reservation of the Penobscot Nation" and "Penobscot Indian reservation" interchangeably, and there is no indication that these uses of "reservation" were not meant to incorporate the definition at § 6203(8). Thus, § 6209- B(1) suggests -- especially in light of the fact that there are very few verbatim uses of the precise defined term "Penobscot Indian Reservation," which appears outside of § 6203(8) only in § 6205 -- that references to "reservations" in the MIA are meant to incorporate the definitions of "Penobscot Indian Reservation" and "Passamaquoddy Indian Reservation" even if they do not use those exact terms. Moreover, other provisions of § 6207 of the MIA suggest that the drafters of the Settlement Acts were not using "reservation" as a catch-all term, as many of its provisions refer to the "respective Indian territories" of the Penobscot Nation and Passamaquoddy Tribe, see, e.g., Me. Rev. Stat. Ann. tit. 30, § 6207(1) (emphasis added) -- a reference that, by all indications, also refers to the definitions in § 6203, albeit to those for "Passamaquoddy Indian territory" and "Penobscot Indian territory."

- 84 - same word was being used to convey such different meanings, and so

the absence of any attempt to explain the decision to use the word

in that nonuniform way would be surprising. See Whitman v. Am.

Trucking Ass'ns, 531 U.S. 457, 468 (2001); see also Gustafson v.

Alloyd Co., 513 U.S. 561, 573 (1995) (explaining that "[t]he burden

should be on the proponents of the view that" a term carries

different meanings "to adduce strong textual support for that

conclusion").39

There is yet one more reason, though, to question the

majority's insistence that "reservation[]" in § 6207(4) of the MIA

cannot be referring to the "Reservation" that § 6203(8) of this

same statute defines. As I have emphasized, the definitional

provision at § 6203(8) of the MIA explains what the term

"'Penobscot Indian Reservation' means" when used in the MIA. Me.

Rev. Stat. Ann. tit. 30, § 6203(8) (emphasis added). In this way,

the definition contained in that provision of the MIA serves to

give content to the rights in the Nation's "Indian Reservation"

that the statute elsewhere confers. Because the definition

39 I note that, by holding in the course of construing § 6203(8) of the MIA that the Nation has sustenance fishing rights under § 6207(4) of the MIA in the disputed portions of the Penobscot River, the majority necessarily renders moot the Nation's stand-alone request for a declaratory judgment to that exact same effect. Accordingly, I do not join the majority's separate holding that we lack Article III jurisdiction on ripeness and standing grounds to entertain the Nation's request for such declaratory relief, as, in my view, there is no reason for us to reach that constitutional issue here. See Maj. Op. 51-55.

- 85 - performs this function in the MIA, however, it is hardly evident

that "Penobscot Nation . . . Indian reservation[]" must be

understood to mean something different and undefined in the

provision of the MIA that lays out the Nation's rights with respect

to sustenance fishing -- § 6207(4) -- from what the Nation's

"Indian Reservation" in § 6203(8) of that statute means when that

term appears in other provisions of the MIA that similarly specify

the Nation's rights. To the contrary, it seems far more natural

to read § 6207(4) to incorporate the definition of the "Indian

Reservation" set forth in § 6203(8), precisely because that

definition has a purpose only once it is plugged into such rights-

granting provisions.40

To be clear, I am not arguing that § 6207(4) of the MIA

"alters" the meaning of § 6203(8) of that statute. See Maj. Op.

49. I am arguing that § 6207(4) constitutes part of the statutory

context that helps us decide the meaning of § 6203(8).

I can see no other way to proceed. It cannot be that we

must set aside a provision purporting to refer to the "boundaries

of the[]" "Penobscot Nation . . . Indian reservation[]" in

40 For this same reason, the grant of sustenance fishing rights in § 6207(4) is in no way rendered unnecessary if the "Penobscot Indian Reservation" does include some waters of the Penobscot River. Under the MIA, the Nation's rights do not come from the definition of "Penobscot Indian Reservation." They come from provisions like § 6207(4). Otherwise, under the MIA, Maine maintains a large measure of regulatory authority even over areas within the "Reservation."

- 86 - determining what another provision in the same statute, which

expressly purports to define the boundaries of the "Penobscot

Indian Reservation," means.

That being so, a consideration of these two provisions

of the MIA together would suggest, if anything, that the drafters

of the Settlement Acts understood the "Penobscot Indian

Reservation" to be inclusive of the area comprising the islands

named and not to consist only of the discrete -- water-less --

uplands in that area. Only that reading harmonizes the provisions.

But, even if we cannot be certain that reading is intended, the

two provisions together at the very least undermine the notion

that § 6203(8) of the MIA clearly adopts an uplands-only

understanding of "Reservation," given that § 6207(4) of that very

statute (as even the majority agrees) rejects such a waters-

excluding reading of that very same word.

D.

The majority does make the fair point that if we are to

look outside of § 6203(8) of the MIA to other provisions of the

Settlement Acts for guidance about that definitional provision's

intended meaning, then we cannot confine that review only to

§ 6207(4) of the MIA. But, that wider review does not itself

suggest that § 6203(8) clearly defines the "Reservation" to

include only the uplands of the islands "reserved . . . by

agreement."

- 87 - The majority emphasizes, Maj. Op. 44, that the MIA

expressly defines "land or other natural resources" to include

water and at other points references water rights or submerged

land. Me. Rev. Stat. Ann. tit. 30, §§ 6203(3), 6207; see also 25

U.S.C. §§ 1721(b)(2), 1722(b). It thus considers the absence of

those terms in § 6203(8) of that statute conspicuous. But, the

possible ambiguity in § 6203(8) that is our concern arises from

the use of the word "islands" in the course of a larger phrase

that refers back to what was "reserved . . . by agreement." Thus,

the bare reference elsewhere in the Settlement Acts to "lands" and

"waters" fails to demonstrate that there is no such ambiguity to

resolve.

The majority also points to § 6205(3)(A) of the MIA,

which states that "[f]or purposes of this section, land along and

adjacent to the Penobscot River shall be deemed to be contiguous

to the Penobscot Indian Reservation." Maj. Op. 43. On a waters-

inclusive understanding of § 6203(8), however, that language in

§ 6205(3)(A) would still be doing useful work. It would be

clarifying what it means to be "contiguous" to a river. So, too,

could it be making clear that lands that abut parts of the

Penobscot River that are not part of the "Reservation" are

considered contiguous to the "Reservation."41

41 The Intervenors argue that understanding "land along and adjacent to the Penobscot River" to include lands far away from

- 88 - Finally, the majority invokes § 1723 of the MICSA, see

Maj. Op. 32, which retroactively ratifies all "transfer[s] of land

or natural resources located anywhere within the United States

from, by, or on behalf of the . . . Penobscot Nation . . . or any

of [its] members" and extinguishes aboriginal title to those lands

or resources as of the date of any such transfer. 25 U.S.C.

§ 1723(a)-(b). That provision's import, however, is limited. It

does not purport to extinguish aboriginal title to land not

transferred.

The MICSA does broadly define "transfer" to include

any voluntary or involuntary sale, grant, lease, allotment, partition, or other conveyance; any transaction the purpose of which was to effect a sale, grant, lease, allotment, partition, or conveyance; and any act, event, or circumstance that resulted in a change in title to, possession of, dominion over, or control of land or natural resources.

the "Reservation" along other stretches of the Penobscot River is in tension with the language in § 6205(3)(A) providing that such replacement lands are to be "as nearly adjacent to the parcel taken as practicable." But, because the reference in § 6205(3)(A) to "land along and adjacent to the Penobscot River" does not itself demarcate any particular stretch of the river, it can be understood as reflecting the understanding that it may not be practicable to acquire land that is on the bank of the stretch of the river within the "Reservation." Moreover, "along and adjacent" need not necessarily refer to land far downriver on this understanding. "Adjacent" can mean "not distant" or "nearby," see Adjacent, Merriam-Webster Online Dictionary, https://www.merriam- webster.com/dictionary/adjacent (last visited May 13, 2021) (first definition), a definition that finds support in the very language the Intervenors point to -- "as nearly adjacent to the parcel taken as practicable." Thus, "along and adjacent to the Penobscot River" could refer to land both along the river and close to it.

- 89 - Id. § 1722(n). In doing so, though, the provision just takes us

back to the question of whether the relevant area here -- waters

included, but sans uplands -- was transferred.

In any event, there is reason to think that the state

regulation of the river that Maine and the majority point to is

not an "act" or "circumstance" that resulted in a "change in title

to, possession of, dominion over, or control of" the river so as

to effect a transfer.42 As the Penobscot Nation has pointed out,

Maine also regulated -- and continues to regulate -- aspects of

the uplands that are undisputedly part of the "Penobscot Indian

Reservation."

And, even if one were to accept that the sort of state

regulation that the State and the Intervenors point to could effect

a transfer, a conclusion that the river itself was subject to such

a transfer would leave empty the grant of sustenance fishing rights

in § 6207(4) of the MIA to the Penobscot Nation "within the

42 The State relies on the interpretation of a similar transfer provision in the Rhode Island Indian Claims Settlement Act in Greene v. Rhode Island, 398 F.3d 45, 52 (1st Cir. 2005). But, as the Penobscot Nation points out, in Greene the Seaconke Wampanoag Tribe itself claimed to have been "dispossessed" of the lands at issue and does not seem to have occupied or controlled those lands even at the time the Union was formed. See id. at 48, 50, 52. For similar reasons, Maine's arguments based on the doctrines of laches, acquiescence, and impossibility also fail. Maine relies on City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), but the lands in that case had been out of tribal control for over 200 years. See id. at 215-16.

- 90 - boundaries of" its "Indian reservation[]." Thus, while the MICSA

controls in the event of a conflict between that federal statute

and the MIA, 25 U.S.C. § 1735(a), I see no reason why we must read

§ 1723 of the MICSA to create a conflict when it is hardly clear

that the text of the Settlement Acts mandates that result.

E.

To this point, my focus has been on the four corners of

the MICSA and the MIA. That focus reveals in my view that it is

at the very least far from clear on the face of the overall

statutory scheme that the definition of the "Penobscot Indian

Reservation" in § 6203(8) of the MIA must be read as the majority

reads it. But, of course, that conclusion does not resolve the

ultimate interpretive dispute at hand. It just highlights that

there is much interpretive work left to do -- in terms of

consulting what the history shows regarding what was understood to

have been reserved by the "agreement" to which § 6203(8) of the

MIA refers, both at the time of that agreement and in the run-up

to the enactment of the Settlement Acts that make reference to it.

I thus now move on to undertake that further work.

II.

In Alaska Pacific Fisheries, the Court resolved the

ambiguity in the text there at issue by broadening the view to

include "[t]he circumstances in which the reservation was

created," as the Court explained that these circumstances could

- 91 - "shed much light on what Congress intended by 'the body of lands

known as Annette Islands.'" 248 U.S. at 87-89. Following that

same interpretive approach to the textual ambiguity present here,

I will consider the relevant "circumstances" in which the

settlement that produced these Acts was forged, as those

circumstances, too, may "shed much light on," id. at 89, what the

drafters of the Settlement Acts intended in using the words that

they did in § 6203(8) of the MIA.

As I will explain, at a minimum, those circumstances

reinforce the reasons to find the relevant words in the provision

here at least as ambiguous with respect to whether the waters at

issue are included as a textual analysis of them suggests that

they are. Thus, at the very least, those circumstances support

the application of the Indian canon in construing those words to

resolve the ambiguity.

But, before reviewing the circumstances leading up to

the Acts' passage, it first helps to get certain things straight

about which specific circumstances are relevant to the Acts' proper

construction and how they differ in certain respects from the

circumstances that mattered most in Alaska Pacific Fisheries

itself.

In Alaska Pacific Fisheries, the Court explained that

Congress, in defining that reservation as it did, was aware, among

- 92 - other things, that "[t]he Indians naturally looked on the fishing

grounds as part of the islands and proceeded on that theory in

soliciting the reservation" and that "[e]vidently Congress

intended to conform its action to their situation and needs." 248

U.S. at 89. Many of those same circumstances are at least as

present here, as we will see, given the Nation's historic ties to

the river. In fact, the relevant statutory text here, unlike that

at issue in Alaska Pacific Fisheries, describes an area that the

tribe has inhabited since time immemorial.

But, as I have already explained, the relevant text does

more than refer to a geographic feature to which the Nation has

ties. That statutory text also indicates that the drafters of the

Settlement Acts intended in defining the "Reservation" to preserve

what had been "reserved . . . by agreement" prior to the Acts'

passage.

Thus, the statute that contains the definition of the

term at issue here would not only appear to direct us to consider

what history shows regarding the Nation's past usages of the waters

in question. It would also appear to direct us to consider past

understandings of what rights the Nation had reserved as to those

waters.

In that regard, it is important to keep in mind the

following understanding in reviewing the relatively detailed

history of the Nation's ties to the river that is set forth below:

- 93 - § 6203(8) of the MIA plainly sets forth what the term "Penobscot

Indian Reservation" "means" with reference to treaties in which

the Penobscot Nation gave up holdings centuries ago to

Massachusetts and then to Maine. That is notable because those

treaties did not themselves purport to be grants of rights from

either of those states to the Penobscot Nation. Those treaties

were by their terms grants of rights to prior holdings from the

Penobscot Nation to those other sovereigns.

Thus, we must be wary of reading those treaties to

establish the limits of what the Nation was reserving rather than

to be merely specifying what it was relinquishing. Otherwise we

will fail to grasp just what the parties to those agreements

understood them to have accomplished. See United States v. Winans,

198 U.S. 371, 381 (1905) ("[T]he treaty was not a grant of rights

to the Indians, but a grant of rights from them -- a reservation

of those not granted. And the form of the instrument and its

language was adapted to that purpose."); Washington v. Wash. State

Com. Passenger Fishing Vessel Ass'n, 443 U.S. 658, 680-81 (1979)

(citing Winans, 198 U.S. at 380-81); Cohen's Handbook of Federal

Indian Law § 2.02 (Nell Jessup Newton ed., 2017) (describing the

"reserved rights doctrine").

It is equally important to keep in mind one more thing

in reviewing the account of the history that follows. As I noted

earlier, the Penobscot Nation does not argue that what was

- 94 - "reserved . . . by agreement" necessarily includes all forms of

"ownership" of the waters and submerged lands of the river at

issue.43 For example, the Nation has not, for purposes of this

litigation, claimed a right to exclude non-tribal members from any

of the waters of the Penobscot River or to control passage in those

waters. Nor would the Penobscot Nation have "exclusive control of

the Main Stem" -- the portion of the Penobscot River that includes

the waters in question -- as the majority suggests, Maj. Op. 35,

if those waters were within what § 6203(8) defines to be the

"Penobscot Indian Reservation."

Under the Settlement Acts, the Penobscot Nation would

have on its preferred reading of § 6203(8) of the MIA "exclusive

authority . . . to promulgate and enact ordinances

regulating . . . [h]unting, trapping or other taking of wildlife"

within the relevant area of the river, because the MIA expressly

grants the Nation that right in its "Reservation." See Me. Rev.

43 The Penobscot Nation explained to the panel that in the proceedings before the District Court, its position was that its "circumscribed sustenance rights and related authorities" outlined in the second amended complaint "did not implicate riverbed ownership, but if they did, the Tribe's position was that it retained aboriginal title to the riverbed." The Nation explained that this is a "different concept than ownership" but nevertheless a largely semantic distinction given that "the Indians' right of occupancy is 'as sacred as the fee simple of the whites,'" County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 235 (1985) (quoting Mitchel v. United States, 34 U.S. (9 Pet.) 711, 746 (1835)).

- 95 - Stat. Ann. tit. 30, § 6207(1)(A).44 And, violations of these and

other tribal ordinances by tribal members within the portions of

the Penobscot River at issue -- as well as certain criminal

offenses committed by tribal members in these areas -- then would

be within the exclusive jurisdiction of the Penobscot Nation

(unless it chooses not to exercise such jurisdiction, in which

case the state has jurisdiction), because, again, the MIA itself

gives that measure of regulatory authority to the Nation within

its "Reservation." Id. §§ 6206(3), 6209-B(1).

There is no suggestion by the Nation here, however, that

either the MIA or the MICSA would give the Nation additional rights

if its understanding of § 6203(8) of the MIA were controlling.

44 Under the Settlement Acts, these ordinances must be "equally applicable . . . to all persons regardless of whether such person is a member of the [Penobscot Nation]," except that there may be "special provisions for the sustenance of individual members of the . . . Penobscot Nation." Me. Rev. Stat. Ann. tit. 30, § 6207(1). This regulatory authority does not include regulating the taking of fish except on ponds "wholly within Indian territory and . . . less than 10 acres in surface area." See id. § 6207(1)(B), (3). And, notwithstanding this authority, the Maine Department of Inland Fisheries and Wildlife is entitled to "conduct fish and wildlife surveys" within the Penobscot Indian Reservation and in some circumstances may exercise regulatory authority to prevent "significant depletion of fish or wildlife stocks on lands or waters outside the boundaries of lands or waters subject to regulation by . . . the Penobscot Nation or the [Maine Indian Tribal-State Commission]." Id. § 6207(6). Section 6207(1) refers to Penobscot Indian territory, which, as I have explained, is broader than the "Penobscot Indian Reservation." But, it is clear from the MIA that the relevant area of the river is within Penobscot Indian territory if and only if it is within the "Reservation." See id. § 6205(2).

- 96 - Thus, we need to keep an eye only on the following in looking to

the past: Does the history suggest that those who drafted these

Settlement Acts intended clearly to exclude all waters in the river

from the definition of the "Penobscot Indian Reservation" in

§ 6203(8) of the MIA, such that the Penobscot Nation would not

have the rights related to hunting, trapping, and taking wildlife

in those waters that the MIA itself gives the Nation in that

"Reservation"?

B.

I begin by canvassing the history that bears on the

nature of the Penobscot Nation's rights in the area in question

before the Nation purported to cede any of those rights to either

Massachusetts or Maine. That inquiry, which is foundational to

any understanding of what the Nation had "reserved" over the years,

necessarily takes us quite far back in time.

So far as the record reveals, from time immemorial the

Penobscot Nation has centered its domain, originally consisting of

many thousands of acres of territory in what today is the State of

Maine, on the Penobscot River. S. Rep. No. 96-957, at 11 (1980);

H.R. Rep. No. 96-1353, at 11 (1980), reprinted in 1980 U.S.C.C.A.N.

3786, 3787 (stating that "[t]he aboriginal territory of the

Penobscot Nation is centered on the Penobscot River" and its "land-

- 97 - ownership orientation" is "riverine").45 In consequence, there is

little question that the Penobscot Nation had aboriginal title to

the lands in that area when the European colonists arrived in New

England in the early seventeenth century. And there is little

question -- and certainly no contention to the contrary by the

State of Maine in this litigation -- that such aboriginal title

did encompass use and occupancy of the Main Stem of the Penobscot

River and not merely land masses (individual islands, which may

come and go over time) within it. See County of Oneida v. Oneida

Indian Nation, 470 U.S. 226, 233-35 (1985) (explaining that "Indian

nations held 'aboriginal title' to lands they had inhabited from

time immemorial" while "discovering nations held fee title to these

lands, subject to the Indians' right of occupancy and use");

Leavenworth, Lawrence & Galveston R.R. Co. v. United States, 92

U.S. 733, 742-43 (1875).

Consistent with this understanding, the members of the

Penobscot Nation located their principal villages along that

portion of the river.46 And, in turn, the river provided the

Penobscot Nation with the main resources upon which its members

45 The Penobscot refer to themselves as Pa'nawampske'wiak, or "People of where the river broadens out." 46 The Penobscot's principal village was variously called Panawamskeag or Pem ta guaiusk took ("great or long River").

- 98 - depended to live by way of fishing, hunting, and trapping, as well

as a means of travel.

The river's foundational influence on the Penobscot

Nation is also embedded in the Nation's language, culture,

traditions, and belief systems. For example, Penobscot family

names, ntútems ("totems"), reflect the creatures of the river:

Neptune (eel), Sockalexis (sturgeon), Penewit (yellow perch),

Nicola/Nicolar (otter), and Orno/Tama'hkwe (beaver). Each family

group also has its own district known as nzibum, meaning "my

river."

In addition, the river features centrally in the

Penobscot Nation's creation myths and is linked to many water-

based totem animals, including fish. This is articulated in its

creation myth about Anglebému ("Guards the water"), the giant frog

that gulped up all the water in the Penobscot River and was killed

by Gluskábe, the Penobscot Nation's "culture hero," who then

released the waters, rescued his "grandchildren," and settled "up

the river."

Thus, it is evident that the Penobscot River and its

natural resources were "not much less necessary to the existence

of the [Penobscot Nation] than the atmosphere they breathed."

Winans, 198 U.S. at 381. And so, when we consider -- as we next

will -- the treaties that the Penobscot Nation purported to make

with Massachusetts and Maine regarding its aboriginal holdings in

- 99 - subsequent years, we must do so with this understanding of the

nature of the Penobscot Nation's ties to the river. It would be

strange to construe those agreements -- and the reservations that

the Nation made in them -- without doing so, for I can see no

reason to interpret the terms of those agreements as if the

Penobscot Nation were, in entering into them, as indifferent to

preserving its sovereign rights in the river as Maine now appears

to suggest that we must understand the Nation to have been.

We consider first the various late seventeenth- and

early eighteenth-century peace treaties between the Penobscot

Nation and the British provinces. In them, the Penobscot Nation

and other tribes in the same general area agreed to "cease and

forbear all acts of Hostility," acknowledged themselves as lawful

subjects of Great Britain, and agreed to British colonists' use

and possession of the colonists' former settlements and

properties. See Treaty of Portsmouth, July 13, 1713, reprinted in

Penhallow's Indian Wars 74 (Edward Wheelock ed., 1924); Dummer's

Treaty, Dec. 15, 1725, reprinted in 3 Collections of the Maine

Historical Society 416 (Portland, Brown Thurston 1853).

But, notably, these treaties also "sav[ed] unto the

Indians their own Ground," Treaty of Portsmouth, supra, at 76;

Dummer's Treaty, supra, at 417-18 ("Saving unto the

Penobscot . . . all their Lands, Liberties and Properties not by

- 100 - them conveyed or Sold to or Possessed by any of the English

Subjects as aforesaid, as also the Priviledge of Fishing, Hunting,

and Fowling as formerly."). And, subsequent events provide some

idea of what those reserved Penobscot "lands" were understood to

be.

In 1775, for example, a committee report of the third

Provincial Congress of Massachusetts "forb[ade] any person or

persons whatsoever[] from trespassing or making waste[] upon any

of the lands and territories, or possessions, beginning at the

head of the tide on Penobscot river, extending six miles on each

side of said river, now claimed by our brethren, the Indians of

the Penobscot tribe." The Journals of Each Provincial Congress of

Massachusetts in 1774 and 1775, at 371 (Boston, Dutton & Wentworth

1838). The report also noted the "friendship and assistance"

offered by the Penobscot in the war with Great Britain. Id.

Indeed, a subsequent treaty, which Colonel John Allan of the

Massachusetts militia negotiated with the Penobscot Nation and

other Maine tribes on June 23, 1777, promised to the Penobscot the

protection of their territory in exchange for their assistance in

the Revolutionary War. S. Rep. No. 96-957, at 11-12; H.R. Rep.

No. 96-1353, at 11-12. Crucially for present purposes, however,

that treaty contained no terms that divested the Penobscot Nation

of any of its aboriginal lands or sovereign rights and so does not

- 101 - itself provide any basis for concluding that the Penobscot Nation

had no claim to the river as of that date.

There followed nearly twenty years later a 1796 treaty

between representatives of the Penobscot Nation and officials from

the State of Massachusetts (Maine still not yet being a state).

That treaty, for the first time, did involve a putative cession of

land by the Penobscot Nation.

Despite the Nonintercourse Act being in effect at that

time, this land cession was not approved by Congress. See Trade

and Intercourse Act of 1793, 1 Stat. 329, 330 (codified as amended

at 25 U.S.C. § 177) ("[N]o purchase or grant of lands, or of any

title or claim thereto, from any Indians or nation or tribe of

Indians, within the bounds of the United States, shall be of any

validity in law or equity, unless the same be made by a treaty or

convention entered into pursuant to the constitution . . . .").

But, this agreement purported nonetheless to provide in exchange

for "[o]ne hundred and forty nine and a half yards blue cloth for

blankets, four hundred pounds of shot, one hundred pounds of

Powder, thirty six hats, thirteen bushels of Salt . . . , one

barrel of New England Rum, and one hundred bushels of corn," to be

delivered upon signing the treaty, as well as similar specified

items every year thereafter, "so long as [the Penobscot Nation]

shall continue to be a nation and shall live within this

Commonwealth," that the Penobscot Nation would cede a thirty-mile

- 102 - tract, six miles wide, of "all the lands on both sides of the River

Penobscot . . . excepting however, and reserving to the [Penobscot

Nation], all the Islands in said River, above Old Town, including

said Old Town Island, within the limits of the said thirty miles."

Treaty Between the Penobscot and Massachusetts, Aug. 8, 1796, in

2 Documents of American Indian Diplomacy 1094, 1094 (Vine Deloria,

Jr. & Raymond J. DeMallie eds., 1999).

There is no question that the Nation gave up a fair

amount through this treaty -- seemingly for not much in return.

But, the terms of this treaty in no sense indicate that the Nation

was relinquishing rather than reserving its historic rights to use

and occupancy of the river itself or its longstanding sovereign

rights relating to hunting and fishing therein.

Indeed, in June 1797, the then-Governor of

Massachusetts, Increase Sumner, reported in his executive address

to the Massachusetts General Court (the Massachusetts Legislature)

that a delegation of Penobscot representatives had rightly

complained to state officials of settler incursions that had

"almost deprived [the Penobscot] of the Benefit of their Salmon

Fishery." Acts and Laws of the Commonwealth of Massachusetts 653

(Boston, Young & Minns 1896) (emphasis added). And, consistent

with that same understanding, in 1807, a delegation of the

Penobscot Nation headed by its Chief, Attian Elmut, met with

Massachusetts Governor James Sullivan to seek protection of the

- 103 - Nation's fishing rights on the river next to its head village on

Old Town. A notetaker quoted Chief Attian as saying, "the God of

Nature gave them their fishery, and no man without their consent

has a right to take it from them." Wabanaki Homeland and the New

State of Maine: The 1820 Journal and Plans of Survey of Joseph

Treat 43 (Micah A. Pawling ed., 2007) (emphasis added).

Thereafter, in 1812, following attempts by multiple other

Penobscot Nation delegations to obtain redress for incursions upon

these fisheries, the Massachusetts legislature responded with

protective legislation.

This is the history, then, that supplied the context for

when representatives of the Penobscot Nation entered into the

treaty with officials from Massachusetts -- Maine still not yet

being a state in its own right -- that serves as the MIA's specific

reference point: the one signed on June 29, 1818. It, too, was

made without congressional approval and in apparent contravention

of the Nonintercourse Act. But, the treaty was sealed by the

payment of four hundred dollars, in addition to "one six pound

cannon, one swivel, fifty knives, six brass kettles, two hundred

yards of calico, two drums, four fifes, one box pipes, three

hundred yards of ribbon, and [the receipt of certain similar

articles] . . . every year, so long as they shall remain a nation,

and reside within the commonwealth of Massachusetts." 1818 Treaty,

supra, at 253, 255. And, in exchange for that seemingly minimal

- 104 - consideration, the Penobscot Nation ceded "all the lands they

claim, occupy and possess by any means whatever on both sides of

the Penobscot river, and the branches thereof, above the tract of

thirty miles in length on both sides of said river, which said

tribe conveyed and released to said commonwealth" by the treaty of

1796. Id. at 253-54.

This treaty, then, purported to confirm the prior

limited cession of lands in the 1796 treaty and to cede more lands

"on both sides of the . . . river." It did not, however, give any

more of a hint that it disclaimed the Penobscot Nation's historic

rights to the river than the earlier treaty had. Indeed, this

treaty expressly stipulated that reserved for the Penobscot Nation

to "enjoy and improve" were four townships and "all the islands in

the Penobscot river above Oldtown and including said Oldtown

island." Id. at 254.47

47 The text of the 1818 treaty, unlike its predecessor, did specifically provide that "the citizens of [Massachusetts] shall have a right to pass and repass any of the rivers . . . which run through any of the lands hereby reserved, for the purpose of transporting their timber and other articles through the same." 1818 Treaty, supra, at 255 (emphasis added). The parties dispute the import of this provision. According to the Penobscot Nation, it must refer to the Penobscot River. To the extent it does so, it reinforces an area-based reading given that the river does not "run through" any of the uplands but instead "run[s] through" the area comprising them, suggesting that the "lands hereby reserved" include that area. For its part, the State argues that this language was only necessary given that in the 1818 treaty the Penobscot Nation also reserved the four townships (which were, as we will see, later ceded to Maine). The "right to pass and repass any of the rivers, streams, and ponds, which run through any of

- 105 - Reflective of that understanding, in a colloquy

thereafter in July of 1820 between representatives of the Penobscot

Nation and officials from the new state of Maine -- once Maine had

separated from Massachusetts and gained statehood and was

therefore to assume Massachusetts's treaty obligations -- John

Neptune, representing the Penobscot Nation, again protested

incursions into the river affecting the Penobscot Nation: "The

white people take the fish in the river so they do not get up to

us. They take them with weirs; they take them with dip-net. They

are all gone before they get to us. The Indians get none." History

of Penobscot County, Maine 593 (Cleveland, Williams, Chase & Co.

1882). Then-Governor of Maine William King agreed that the protest

was justified, replying that the Penobscot Nation's complaint

would be "attended to." XVIII Niles' Weekly Register 563

(Baltimore, Franklin Press 1820).

the lands hereby reserved," Maine argues, was an "affirmative grant to non-tribal members" to pass through the waters running through those reserved townships. Maine does not point to any rivers running through those townships, much less ones that would have been important in timber transportation, as the record makes clear that the Main Stem of the Penobscot River was. But, it is true that per the 1818 treaty, the first reserved township "cross[ed] the mouth of the Mattawamkeag river." Id. at 254. Thus, the treaty provision granting a "right to pass" is not a conclusive indication that the 1818 treaty contemplated a reservation of the area comprising the islands, including their attendant waters. Nonetheless, the fact that the provision could still have meaning even if it did not refer to the waters surrounding the reserved uplands hardly eliminates the ambiguity that inheres in what was "reserved" in the 1818 treaty.

- 106 - The following month, on August 17, 1820, Penobscot

leaders signed two more treaties. Together, these treaties

released Massachusetts from its obligations under the 1818 treaty

and substituted the new state of Maine in its place. But, they

did not suggest that the Nation was relinquishing what it had

retained to that point.

The 1820 treaty with Maine provided that the Penobscot

Nation "shall have and enjoy, all the reservations made to them,

by virtue of" the 1818 treaty while any "lands, rights, immunities

or privileges" held by Massachusetts pursuant to the 1818 treaty

would be transferred to Maine. Wabanaki Homeland, supra, at 289.

And, notably, in 1821, Neptune, after having raised concerns about

the Penobscot Nation's fishing rights before the Nation signed the

1820 treaty with Maine, followed up with a petition to the Maine

Legislature in which he stated that

[T]he waters of our Penobscot River was one of the greatest sources by which they obtained their [living] . . . . But . . . our brethren the white Men who live near the tide waters of our River every year built so many weares . . . . and killed so[ ]many of the fish that there is hardly any comes up the River where we live so that we cannot [c]atch enough for the use of our families . . . . We have asked the general Court at Boston to make laws to stop the white people from building wares and they have made Laws but they have done [us] no good . . . . [N]ow we ask you to make a Law to stop the white folks . . . .

- 107 - There is no record of the Maine Legislature responding

with protective legislation, as Massachusetts had done. But, in

1833, the State of Maine purchased for $50,000 from the Penobscot

Nation -- again without the requisite federal approval for such a

land purchase -- four townships on the banks of the Penobscot River

that had been reserved for the Penobscot Nation's "perpetual use"

in the prior treaties.

There were no more "agreements" between the Penobscot

Nation and the States of Massachusetts and Maine, and such

developments as occurred over the course of the next century are

not especially clarifying with respect to the issue that is our

concern. But, to the extent they do shed light, they underscore

how difficult it is to find any clear indication that the parties

to any of the past agreements understood the Penobscot Nation to

have given up all claims to sovereign rights in the waters at

issue.

The State of Maine did pass legislation over the course

of these years that authorized the construction and operation of

log booms, piers, and dams in the Main Stem of the Penobscot River,

and lumber companies built lumber mills on and over parts of the

Main Stem during that same time. See Penobscot Nation, 151 F.

Supp. 3d at 201-02. It is also undisputed that this construction

- 108 - happened without any lease or other grant from the Penobscot

Nation.

But, the record shows that the Penobscot Nation itself

signed leases for dam and mill owners to build on some of the

islands near Old Town. And, those leases reserved fishing rights

for the Nation and required that fish passages be left open. The

leases also specifically allowed for the grantees' use of parts of

the river itself -- including "coves and eddies," river ledges,

and other landmarks within the channel of the river. Throughout

this period, moreover, the Penobscot continued to engage in

fishing, hunting, and trapping from the river and to pass between

its islands on the river.

This somewhat mixed picture of the understandings that

prevailed following the treaties is in itself significant. As we

have seen, the history that led up to the forging of the last

treaty involving the Penobscot Nation hardly supports an uplands-

only understanding of what had been reserved to the Nation up until

that time. It is thus hard to see how what followed does so with

any clarity.48

48 The Intervenors do argue that the river (or even a right to use and occupancy of its waters of a sort that the Penobscot Nation now asserts) could not have been part of what was "reserved," given that -- whatever its aboriginal holdings may once have been -- the Nation ceded the river as early as the 1713 treaty. But, the history just recounted -- including the very fact of the later treaties -- and what it shows about the parties' understandings disposes of the Intervenors' argument that the 1713

- 109 - C.

In sum, the "circumstances," Alaska Pac. Fisheries, 248

U.S. at 87-89, that formed the backdrop for the Settlement Acts

suggest at a minimum that it is plausible that Congress, Maine,

and the Penobscot Nation understood the Nation to have

"reserved . . . by agreement," through the limited (but

substantial) cessions of lands "on both sides of the . . . river"

that were made, the Nation's use of the river and its historic

sovereign rights with respect to fishing, trapping, and hunting

therein. See Winans, 198 U.S. at 381. Thus, these circumstances

support -- even if they do not compel -- an understanding of the

phrase "islands in the Penobscot River reserved to the Penobscot

Nation by agreement" in the MIA's definition of the "Penobscot

Indian Reservation" that would include the area comprising the

islands and not simply the uplands.

Given that such an understanding results in a reading of

§ 6203(8) of the MIA that is just as inclusive of the waters in

that area as is the "reservation[]" to which the majority agrees

treaty can be understood to have divested the Penobscot Nation of all of its aboriginal holdings. The majority also characterizes as "disputed" the assertion that the Nation did not give up any rights to the river in the 1796 and 1818 treaties. Maj. Op. 22. But, no party has argued that the Nation gave up rights to the river in either of those treaties, and the majority does not explain the source of this dispute or how the text of either treaty makes this point disputable.

- 110 - that § 6207(4) of that same statute refers, I can see no reason

why we would not then be confronted at the very least with an

ambiguity in § 6203(8) to which the Indian canon would apply. And,

if we were to apply that canon, we then would be required to

construe the term that it purports to define -- "Penobscot Indian

Reservation" -- in the waters-inclusive, area-based manner that

the Penobscot Nation favors, with all the follow-on consequences

that would entail under the Settlement Acts.

In fact, for that not to be the case, either of two

things would have to be true. The legislative history of the

Settlement Acts would have to compel us to conclude what the

statutory text itself does not: that the definition of the

"Reservation" in § 6203(8) of the MIA was intended to encompass

only the uplands of the islands at issue. Or, alternatively, the

Indian canons simply would have to have no application in this

context. I thus now wind up the analysis by considering each

possibility.

The majority does conclude, in an independent holding,

that the legislative history in and of itself compels the uplands-

only reading. But, I cannot agree.

The majority asserts that it would be odd for legislation

purporting to settle the Maine tribes' land claims to resolve title

- 111 - disputes by ratifying reservations in prior agreements without

explaining what the reservations in those agreements were. See

Maj. Op. 28-37. After all, why would the drafters have wanted to

make consideration of the complicated history necessary,

especially given that the disputes concern a navigable waterway?

For this purpose-based reason, the majority contends that it makes

sense to read § 6203(8) of the MIA -- to which the MICSA directs

the reader to find the definition of "Penobscot Indian Reservation"

-- to encompass only the uplands. That reading, after all, lays

to rest any disputes about what rights to the waters the Nation

retains within the "Reservation" by making clear that no such

waters lie within it.

This argument disregards, however, the fact that the

Settlement Acts were a response to potential land claims to areas

that were "ceded" by the Maine tribes -- up to two-thirds of the

area of what is now the State of Maine, see Passamaquoddy Tribe v.

Maine, 75 F.3d 784, 787 (1st Cir. 1996) -- without regard to the

Nonintercourse Act. In other words, the dispute being settled

was, in the main, about whether the putative treaty-based cessions

of lands "on both sides of the Penobscot river" themselves were to

be given legal effect. It was not about the dispute that is front

and center in this litigation, which concerns only whether what

had been "reserved . . . by agreement" in the treaty making those

- 112 - cessions of land included the area comprising the islands or only

the uplands in that area.

Thus, it is hardly implausible that the drafters thought

it sufficient to accomplish their chief task -- settling

potentially dramatically destabilizing land claims -- to use the

1818 agreement between the Nation and Massachusetts as the

reference point. That agreement clearly established that land "on

both sides of the . . . river" had not been "reserved" by the

Nation. See 1818 Treaty, supra, at 253-54.

This understanding, which would take the drafters to

have been relying on past understandings reflected in that treaty,

is even less implausible when one considers the repeated references

in the legislative history that reflect comfort with the notion

that the Nation would retain sovereign rights relating to hunting

and fishing. Congress's final committee reports provide that the

MICSA would extinguish the Nation's land claims resulting from the

purported invalidity of the land transfers. But, the reports also

expressly describe the settlement as providing that "the Penobscot

Nation will retain as reservations those lands and natural

resources which were reserved to them in their treaties with

Massachusetts and not subsequently transferred by them." S. Rep.

No. 96-957, at 18 (emphasis added); H.R. Rep. No. 96-1353, at 18.

Those committee reports further explain that the Nation will

"retain[] sovereign activities," including those relating to

- 113 - hunting and fishing, under the Settlement Acts. S. Rep. No. 96-

957, at 15; H.R. Rep. No. 96-1353, at 15.

It is also notable that the legislative history does not

evidence a legislative understanding -- let alone a clear one --

that the Nation was relinquishing those rights in the waters

relating to hunting and fishing that it had long claimed as an

aspect of its sovereignty. To the contrary, Congress heard

testimony from members of the Penobscot Nation about the waters'

importance, including testimony from a tribal member who relied on

food sources from the river to feed her children, explaining that

her son "fishes my islands," meaning that he fished from a canoe

in the waters surrounding the islands. And though members of the

Penobscot Nation testifying before Congress expressed concerns

that settlement provisions might be construed to destroy the

Nation's "sovereign rights," in particular those related to

hunting and fishing and the Nation's culture, the committee report

for the MICSA called these concerns "unfounded" and emphasized

that the hunting and fishing provisions in the MIA recognized the

Penobscot Nation's "inherent sovereignty" and were "examples of

expressly retained sovereign activities." S. Rep. No. 96-957, at

14-15; H.R. Rep. No. 96-1353, at 14-15.

That part of the legislative history is important for

present purposes. As I have explained, § 6207(4) of the MIA, in

securing sustenance fishing rights to the Penobscot Nation "within

- 114 - the boundaries" of its "Indian reservation[]," is plainly

referring to the area comprising the islands in the Penobscot River

that are the very same "islands" referenced in § 6203(8) of the

MIA. That being so, it is hard to see how this part of the

legislative history supports the construction of § 6203(8)'s

definition of the "Reservation"'s boundaries, landlocked as it

would make them, that Maine urges us to adopt.

But, the case for rejecting Maine's position regarding

the legislative history is even stronger when one considers what

that history most conspicuously does not disclose -- any suggestion

whatsoever that the "reservation[]" referenced in § 6207(4) of the

MIA is not the "Penobscot Indian Reservation" defined in § 6203(8)

of that same statute. That is quite an omission if -- in order to

clarify things in the face of title disputes -- the legislature

must have intended for the latter definition to be an uplands-only

one and the former to be a waters-inclusive one.

The omission becomes all the harder to explain -- if one

accepts the majority's view of the definition in § 6203(8) of the

MIA -- when one considers still other features of the legislative

history. Those features underscore the reasons that I have already

given to doubt that the drafters of the MIA meant to refer to two

distinct Penobscot Nation reservations rather than merely one in

two different provisions of that statute.

- 115 - For example, in a public hearing held by the Maine

Legislature's Joint Select Committee on Indian Land Claims in March

1980, the tribes' attorney explained that the exercise of "tribal

powers in certain areas of particular cultural importance such as

hunting and fishing" was an issue that had been important for the

State to understand in negotiations. See Hearing on L.D. 2037

Before the Joint Select Comm. on Indian Land Claims, 109th Leg.,

2d Sess. 25 (Me. 1980). The Committee heard concerns about hunting

and fishing from non-tribal members, too. A member of the Atlantic

Seamen's Salmon Commission expressed concern that "critical parts

of the Penobscot River" would "fall within the confines of the

Settlement," which "could spell danger to the salmon." Id. at

117-18. But, significantly, rather than refuting this premise,

Maine's Deputy Attorney General explained:

Currently under Maine Law, the Indians can hunt and fish on their existing reservation for their own sustenance without regulation of the State. That's a right which the State gave to the Maine Indians on their reservations a number of years ago and the contemplation of this draft was to keep in place that same kind of right . . . .

Id. at 55-56 (emphases added).

It is also worth noting that those aspects of the

legislative history suggesting that the Penobscot Nation did not

have fee title to the submerged lands are not inconsistent with

the idea that the Settlement Acts codified the use- and occupancy-

- 116 - based hunting and fishing rights that the Penobscot Nation had

long enjoyed, which are all the Nation must establish that it

reserved to prevail in the present litigation. See Winans, 198

U.S. at 381; Cohen's Handbook § 18.01 (explaining that aboriginal

title includes "component hunting, fishing, and gathering

rights"); id. § 15.02 ("An Indian reservation is a place within

which a tribe may exercise tribal powers, but not all land within

a reservation may belong to the tribe."). And, according to the

Penobscot Nation's negotiators, the Penobscot Nation had

maintained through the negotiations that it retained aboriginal

title to the waters of the Main Stem in the area comprising the

islands referenced in § 6203(8).

True, the stated purposes of the MICSA include

"remov[ing] the cloud on the titles to land in the State of Maine

resulting from Indian claims" and "clarify[ing] the status of other

land and natural resources in the State of Maine." 25 U.S.C.

§ 1721(b). True as well, the U.S. Department of the Interior's

Federal Register notice describes the MICSA as "extinguish[ing]

any claims of aboriginal title of the Maine Indians anywhere in

the United States and bar[ring] all claims based on such title."

Extinguishment of Indian Claims, 46 Fed. Reg. 2390, 2391 (Jan. 9,

1981).

But, as I have explained -- and as the extensive history

that I have reviewed makes clear -- the Settlement Acts responded

- 117 - to aboriginal title claims to the land that was ceded in the

eighteenth- and nineteenth-century agreements. See 25 U.S.C.

§ 1721(a)(1). There is no indication that the Settlement Acts

were intended to upset use- and occupancy-based sovereign rights

in those areas not previously ceded in the suspect agreements --

at least insofar as those rights are no broader than the ones

recognized in the Settlement Acts themselves as ones that the

Nation would retain in its "Reservation." To the contrary, the

focus in the federal legislative history on the Penobscot Nation's

retained sovereignty with respect to activities that could only

occur within the waters in question -- such as, for example, the

activity that is the subject of § 6207(4) itself -- suggests that

upsetting those rights was not the intended result.

The rights that the Penobscot Nation claims, moreover,

are a function of the substantive provisions of the Settlement

Acts themselves. The federal legislative history just canvassed

shows that these provisions of those Acts -- which ensure that the

Penobscot Nation can exercise within its "Reservation" the rights

related to the taking of wildlife that it claims in this litigation

-- are best understood as encompassing the area in which the Nation

has long exercised these rights.

Thus, the legislative history does not support the

purpose-based assertion that the majority makes about why the

definition of "Penobscot Indian Reservation" in § 6203(8) of the

- 118 - MIA must be construed to exclude altogether everything but the

uplands. Rather, that legislative history at most merely

underscores the ambiguity that arises from the reference in that

provision to what was "reserved . . . by agreement," given the

waters-inclusive reference to the "Penobscot Nation . . . Indian

reservation[]" in § 6207(4) of that same statute.

In sum, a purpose to clear title to lands and natural

resources that have been transferred cannot itself reveal what was

understood to have been transferred, and the Penobscot Nation seeks

here only to ensure that the Nation will enjoy the same sovereign

rights over taking wildlife in the waters in question that the

Settlement Acts plainly give the Nation throughout the Penobscot

Indian Reservation. I thus do not see how a recognition of those

limited rights can be said to be beyond the comprehension of the

drafters of these measures when the legislative history reveals

the repeated contemplation of just such recognition.

The majority does also conclude, less generally, that

the legislative history shows that the legislature deliberately

included only the uplands of the islands in the "Reservation."

See Maj. Op. 35 n.17. But, here, too, the evidence is weaker than

advertised.

In a "background" paper that the U.S. Department of the

Interior included in a hearing submission to the House Committee

- 119 - on Interior and Insular Affairs, the Penobscot Nation was described

as having a "4,000 acre reservation on a hundred islands in the

Penobscot River." Had the entire Main Stem been included, bank-

to-bank, the majority concludes, the reservation would be 13,760

acres. Maj. Op. 35 n.17.

In support of its contention that this point is a salient

one, the State cites Idaho v. United States, 533 U.S. 262 (2001).

There, the Court used as evidence of the intent to include

submerged lands in a reservation the fact that the acreage

description in a government survey purporting to define the

reservation's total area "necessarily included" submerged lands.

Id. at 267, 274. As the Penobscot Nation and the United States

point out, however, citing examples from the website for the Maine

Department of Inland Fisheries and Wildlife, "it is not unusual to

specify only upland acreage when adjacent submerged lands also are

within the boundaries." Therefore, there is a weaker inference to

be drawn from an acreage description that excludes submerged lands

than from one that necessarily includes submerged lands. Cf. id.

at 267. Moreover, in Idaho the acreage description came from a

formal survey of the reservation that was undertaken by the United

States for the very purpose of setting the reservation boundaries

and "fix[ing] the reservation's total area." Id. The brief

reference to acreage included in the hearing submission, in

- 120 - contrast, cannot bear the weight the majority or the State would

put on it.

Similarly, a map was provided to the Senate in the run-

up to the MICSA's enactment that shaded only the islands and not

the river in the color denoting the "Reservation."49 But, that map

was introduced into the record for purposes of identifying the

newly acquired trust lands under the settlement, not to define the

boundaries of the existing reservation. See Proposed Settlement

of Maine Indian Land Claims: Hearing on S. 2829 Before the S.

Select Comm. on Indian Affairs, 96th Cong. 282 (1980) (statement

of Sen. William S. Cohen, Member, S. Comm. on Indian Affairs)

(requesting a "map of the State of Maine designating the areas

that are now under consideration for sale" and stating that such

a map "should become a part of the record as far as what areas are

being contemplated for sale and what range of parcels are being

contemplated for purchase"). Particularly in these circumstances,

the shading hardly indicates that Congress understood the

Penobscot Nation to retain no reservation-based rights in the Main

49 The District Court found that pursuant to the map's key, the islands in the Main Stem were shaded in red, which represented "Indian Reservation," and the Main Stem was shaded in white, which represented "river and lakes adjacent to settlement lands." Penobscot Nation, 151 F. Supp. 3d at 194, 218.

- 121 - C.

The post-enactment history of the Settlement Acts

reinforces this same understanding. It cannot reveal a legislative

meaning not otherwise indicated, but it does usefully give some

indication of the understandings that prevailed at the time of the

Settlement Acts' passage. Those understandings comport with the

understanding of the "Reservation" boundaries that the Penobscot

Nation favors. See Alaska Pac. Fisheries, 248 U.S. at 89-90

(citing, as support for the conclusion that the reservation

included the adjacent waters, the fact that "the statute from the

time of its enactment has been treated . . . by the Indians and

the public as reserving the adjacent fishing grounds as well as

the upland, and that in [post-enactment] regulations prescribed by

the Secretary of the Interior . . . the Indians are recognized as

the only persons to whom permits may be issued for erecting salmon

traps at these islands"); cf. McGirt v. Oklahoma, 140 S. Ct. 2452,

2469 (2020) (explaining that the Supreme Court has recognized "that

'[e]vidence of the subsequent treatment of the disputed land'" may

play a limited interpretive role "to the extent it sheds light on

what the terms found in a statute meant at the time of the law's

adoption" (alteration in original) (quoting Nebraska v. Parker,

577 U.S. 481, 493 (2016))).

- 122 - 1.

Consider that the Penobscot Nation began operating its

own warden service in 1976, Penobscot Nation, 151 F. Supp. 3d at

196-97, largely through federal funding from the U.S. Department

of the Interior for the Nation's exercise of governmental authority

on "Reservation lands and waterways,"50 and that the Nation

continued doing so after the Settlement Acts were enacted. In

fact, since 1982, Penobscot Nation wardens have been cross-

deputized under state law to "have the powers of [state] game

wardens" within "Penobscot Indian Territory." Me. Rev. Stat. Ann.

tit. 12, § 10401; 1981 Me. Laws 1886, 1887; see also Penobscot

Nation, 151 F. Supp. 3d at 197.

To be sure, in the years following the Settlement Acts,

Maine and Penobscot Nation game wardens collaborated on some

patrols and enforcement actions in the Main Stem. Penobscot

Nation, 151 F. Supp. 3d at 197. According to affidavits of state

game wardens, those wardens enforced Maine fish and game laws

50 The Penobscot Nation has consistently received federal funding related to the river. For example, in 1993, the Penobscot Nation received funding for a water resources management program that included monitoring of the Penobscot River. Penobscot Nation, 151 F. Supp. 3d at 212. In 1999, the Nation received funding to educate tribal members on the risks of consuming contaminated fish, in light of the fact that tribal members continued to rely on the river to feed their families. Id. And, in 2007 and 2010, the Nation again received funding for game warden patrols, acknowledging that the tribe patrolled in the Penobscot River. Id.

- 123 - against tribal and non-tribal members. But, the record shows, in

1990, when state game wardens responded to a report involving a

tribal member deer hunting from a boat in the Penobscot River in

violation of state hunting regulations, the state wardens

contacted Penobscot Nation wardens, and the tribal member was

ultimately turned over to Penobscot Nation wardens for prosecution

in the Tribal Court after an initial joint investigation.51 See

id. at 209. Thus, this aspect of the post-enactment history

accords with a conclusion that the Settlement Acts were not

understood to have conferred to Maine full authority with respect

to hunting, trapping, and fishing in the relevant waters, such

that the Nation was divested of them.

Other post-enactment developments and representations by

state officials support this same conclusion. For example, eight

years after the Settlement Acts were negotiated and went into

effect, an issue arose as to the application within the river of

state-wide rules against the use of gill nets to harvest fish.

See id. at 199. Members of the Penobscot Nation wanted to use

51 The Penobscot Nation's exercise of jurisdiction suggests that the river was understood to be within the "Reservation" in part because the Settlement Acts gave the Penobscot Nation exclusive jurisdiction over certain criminal offenses committed on the Penobscot Indian Reservation by a tribal member. The Tribal Court would not have had jurisdiction over a crime not committed on its reservation. See 1989 Me. Laws 249-50; 1979 Me. Laws 2404.

- 124 - gill nets to fish in the Penobscot River, within what they

understood to be part of the "Reservation," as was consistent with

the Nation's traditional practices and permitted under its own

regulations.

In a letter dated February 16, 1988, Maine Attorney

General James E. Tierney opined that the Penobscot Nation's use of

gill nets was permissible:

In the opinion of this Department, . . . [p]ursuant to Section 6207(4) of the [MIA], members of the . . . Penobscot Nation are authorized to take fish, within the boundaries of their . . . Indian Reservation[], and "notwithstanding any rule or regulation promulgated by the Commission or any other law of the State," so long as the fish so taken are used for "their individual sustenance."

Letter from James E. Tierney, Att'y Gen. of Me., to William J.

Vail, Chairman, Atl. Sea Run Salmon Comm'n (Feb. 16, 1988). There

was notably no indication in this response that the "Indian

Reservation[]" to which he referred was not the one defined in

§ 6203(8). Indeed, the capitalized reference to the "Reservation"

appears to reflect the understanding that they were the same.

Similarly, in the mid-1990s, Maine issued permits for

eel pots in waters of the Penobscot River that provided that "[t]he

portions of the Penobscot River and submerged lands surrounding

the islands in the river are part of the Penobscot Indian

Reservation and [gear] should not be placed on these lands without

permission from the Penobscot Nation." Penobscot Nation, 151 F.

- 125 - Supp. 3d at 199. Again, it is hardly logical to think that this

reference to the "Penobscot Indian Reservation" meant something

different than that term as defined in § 6203(8) of the MIA.

In fact, the Penobscot Nation maintained in the years

following the Settlement Acts its own permitting system and issued

permits to non-tribal members for duck hunting and eel trapping in

the relevant waters. And, the Penobscot Nation passed regulations

concerning tribal members' sustenance fishing in those waters.52

Illuminating, too, are the disputes that arose in the

1990s over the relicensing of hydro-electric dams on the Penobscot

River. In proceedings before the Federal Energy Regulatory

Commission ("FERC"), Bangor Pacific Hydro Associates and various

papermaking companies with facilities located in or near the river

asserted the position that the river was outside the reservation

boundaries. Then-Chair of the Maine Indian Tribal-State

Commission Bennett Katz, who was Majority Leader of the Maine

Senate at the time of the MIA's passage, explained in a letter to

FERC that this was "the first time these particular arguments ha[d]

come to the attention of the Commission" and that, "[t]o [his]

knowledge, the State ha[d] never questioned the existence of the

right of the Penobscot Indian Nation to sustenance fishing in the

52 Consistent with the Settlement Acts, the Penobscot Nation is not seeking here to regulate fishing other than tribal members' sustenance fishing.

- 126 - Penobscot River." Letter from Bennett Katz, Chair, Me. Indian

Tribal-State Comm'n, to Lois Cashell, Sec'y, Fed. Energy Regul.

Comm'n (Nov. 1, 1995). Moreover, he stated that he could not

"imagine that [such a restrictive] meaning was intended by [his]

colleagues in the Legislature who voted in support of the

Settlement." Id.

Indeed, the State of Maine subsequently expressed its

view in a brief to FERC that "Penobscot fishing rights under the

[MIA] exist in that portion of the Penobscot River which falls

within the boundaries of the Penobscot Indian Reservation," which

"may generally be described as including the islands in the

Penobscot River above Old Town . . . and a portion of the riverbed

between any reservation island and the opposite shore." State of

Maine's Response to the Department of the Interior's April 9, 1997

Filings Pursuant to Sections 4(e) and 10(e) of the Federal Power

Act at 12-13, Project No. 2534 (FERC May 29, 1997). So, there,

too, the equation between the "reservation[]" referenced in

§ 6207(4) of the MIA and the "Reservation" referenced in § 6203(8)

of that statute seemed to be one that came naturally even to Maine

There is still more evidence from these years that it

was not thought that the Settlement Acts defined an uplands-only

"Reservation." Also in the 1990s, the Penobscot Nation began

- 127 - lobbying the U.S. Environmental Protection Agency ("EPA") for

water quality standards that would protect the Nation's right to

sustenance fish in the Main Stem. Penobscot Nation, 151 F. Supp.

3d at 207. Maine's Attorney General wrote to the EPA asserting

that the sustenance fishing rights established in the Settlement

Acts did "not guarantee a particular quality or quantity of fish."

Letter from Andrew Ketterer, Att'y Gen. of Me., to John DeVillars,

Reg'l Adm'r, Env't Prot. Agency (June 3, 1997). But, notably, in

the course of that letter, he did not reject the view that the

Nation had rights in the waters owing to its rights to the islands,

stating that "[a]lthough there may be a certain portion of the

river bed that goes along with the ownership of an island in the

river, . . . ownership of a portion of the bed does not constitute

ownership of the 'river.'" Id.

There is, finally, a 2006 brief to this Court involving

Maine's environmental regulatory authority concerning discharges

into the river. Maine acknowledged there that there was "strong[]

disagree[ment]" between the parties -- the State, the Penobscot

and Passamaquoddy Tribes, and the federal government -- concerning

the "boundaries of Indian Territory in the Penobscot basin." Brief

of Petitioner State of Maine at 58, Johnson, 498 F.3d 37 (Nos. 04-

1363, 04-1375). But, in that same litigation, the State made clear

that it viewed the definition of the "Reservation" in the

Settlement Acts as including the "accompanying riparian rights" to

- 128 - the islands that "have not been transferred." Brief of State of

Maine as Intervenor-Respondent at 3 n.2, Johnson, 498 F.3d 37 (Nos.

04-1363, 04-1375). This statement, though not a concession of the

point in dispute here, is also in no sense a clear embrace of the

uplands-only view now said to be crystal clear in § 6203(8).

In fact, it was only when, around 2012, the Maine

Commissioner of Inland Fisheries and Wildlife and the Colonel of

Maine's Warden Service requested an opinion from the Maine Attorney

General addressing the "respective regulatory jurisdictions" of

the Penobscot Nation and the State "relating to hunting and fishing

on the main stem of the Penobscot River" that the uplands-only

view became Maine's in any clear way. Att'y Gen. of Me., Opinion

Letter (Aug. 8, 2012). In a formal opinion issued on August 8,

2012, Maine Attorney General William Schneider adopted the

interpretation of the MIA that Maine had previously disavowed when

it was proposed by the paper companies in the FERC proceedings --

that "the River itself is not part of the Penobscot Nation's

Reservation, and therefore is not subject to its regulatory

authority or proprietary control." Id.

In sum, neither the text of the Settlement Acts nor their

pre- or post-enactment history requires the conclusion that the

definition of the term "Penobscot Indian Reservation" in the

Settlement Acts unambiguously excludes the waters at issue, such

- 129 - that the rights in the "Reservation" under the Settlement Acts

themselves that are actually at issue in this case do not extend

to those waters. It is hardly unambiguous, therefore, that the

Settlement Acts' definition of "Penobscot Indian Reservation"

excludes the waters at issue, such that the Nation's sole right in

them is conferred by § 6207(4) and that the Nation has no rights

in them in consequence of what was "reserved to the Penobscot

Nation by agreement." For, as I have explained, "islands in the

Penobscot River reserved to the Penobscot Nation by agreement" is

not itself a term with a fixed and readily identifiable

geopolitical meaning. See Amoco Prod. Co., 480 U.S. at 547 & n.14.

And, as the Supreme Court has made clear, the use of terms like

"lands" and "islands" in a larger phrase does not, depending on

context, necessarily exclude attendant waters. See, e.g., Alaska

Pac. Fisheries, 248 U.S. at 89; Hynes, 337 U.S. at 110-11.

IV.

The Penobscot Nation urges us, not unpersuasively, to

conclude that the history (legislative and otherwise) itself

suffices to demonstrate that its reading of § 6203(8) of the MIA

-- given the ambiguity inherent in that provision's text and the

text of § 6207(4) of that same statute -- is superior. But, the

Nation recognizes that we need not do so for it to win.

"When we are faced with . . . two possible

constructions, our choice between them must be dictated by a

- 130 - principle deeply rooted in . . . Indian jurisprudence:

'[S]tatutes are to be construed liberally in favor of the Indians,

with ambiguous provisions interpreted to their benefit.'" County

of Yakima, 502 U.S. at 269 (third alteration in original) (quoting

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985));

see also Antoine v. Washington, 420 U.S. 194, 199 (1975) ("The

canon of construction applied over a century and a half by this

Court is that the wording of treaties and statutes ratifying

agreements with the Indians is not to be construed to their

prejudice."). Thus, the Nation contends, and I agree, that the

canon itself suffices to resolve this case in the Nation's favor.

Maine does argue that the Indian canons cannot apply

here, even if the relevant statutory provision defining the

"Reservation" is not itself clear. But, in light of this Court's

opinion in Penobscot Nation v. Fellencer, 164 F.3d 706 (1st Cir.

1999), I cannot agree. See id. at 709 (construing the phrase

"internal tribal matters" in the MIA and noting that it is a

"general principle[] that inform[s] our analysis of the statutory

language" that "special rules of statutory construction obligate

us to construe 'acts diminishing the sovereign rights of Indian

tribes . . . strictly,' 'with ambiguous provisions interpreted to

the [Indians'] benefit'" (third and fourth alterations in

original) (first quoting Rhode Island v. Narragansett Indian

Tribe, 19 F.3d 685, 702 (1st Cir. 1994); and then quoting County

- 131 - of Oneida, 470 U.S. at 247)); see also Maynard v. Narragansett

Indian Tribe, 984 F.2d 14, 16 & n.2 (1st Cir. 1993) (noting that

the Rhode Island Indian Claims Settlement Act and its enacting

legislation "would have to be construed to afford the Tribe the

benefit of any ambiguity on the waiver-abrogation issue");

Connecticut ex rel. Blumenthal v. U.S. Dep't of the Interior, 228

F.3d 82, 92-93 (2d Cir. 2000) (construing the Connecticut Indian

Land Claims Settlement Act to the benefit of the Mashantucket

Pequot even though "the Tribe today is at no practical

disadvantage" because the Supreme Court has applied the Indian

canon even "where Indians were at no legal disadvantage").53

53 Maine and the Intervenors argue that specific provisions of the MICSA providing that "no law or regulation of the United States (1) which accords or relates to a special status or right of or to any Indian, Indian nation . . . [or] Indian lands . . . , and also (2) which affects or preempts the civil, criminal, or regulatory jurisdiction of the State of Maine . . . shall apply within the State" preclude application of the canon of construction. 25 U.S.C. § 1725(h); see also id. § 1735(b) (providing that "[t]he provisions of any Federal law enacted after October 10, 1980, for the benefit of Indians, Indian nations, or tribes or bands of Indians, . . . which would affect or preempt the application of the laws of the State of Maine . . . shall not apply within the State of Maine" unless specifically provided). Even assuming that Fellencer did not resolve this issue, the claim is unavailing. The Senate Report supports the view that these provisions apply to statutes enacted and rules promulgated and not to interpretive principles. See S. Rep. No. 96-957, at 30-31 (citing as examples the Indian Child Welfare Act and the federal Clean Air Act). Moreover, the MICSA's baseline is that "the laws and regulations of the United States which are generally applicable to Indians . . . shall be applicable in the State of Maine." 25 U.S.C. § 1725(h). Although Maine argues that the case "has direct jurisdictional implications for the State" and that applying the canons would affect Maine's "jurisdiction" -- a term that the

- 132 - Indeed, the majority does not dispute that the canon would apply

in the event of an ambiguity. See Maj. Op. 39-40.

Nor do Maine's and the Intervenors' arguments that, even

if the Indian canon does apply, the canon against conveying

navigable waters must take precedence over it change the result

here. Even if the navigable waters canon could apply to the

circumstances here, where the federal government never held title

to the river in trust for a state, there is no apparent tension

between the idea that the state could hold "title" in the manner

contemplated by the navigable waters canon and the notion that at

the same time the Penobscot Nation has what it claims here: use-

and occupancy-based rights. Thus, as an ambiguity-resolving

principle, the navigable waters canon can do little work here.54

Senate Report suggests is to be "broadly construed," S. Rep. No. 96-957, at 30 -- there is a difference between an interpretive principle that could result in jurisdictional implications and statutes that control how state jurisdiction applies in Indian country. Nothing in the legislative history clearly reaches the former as opposed to merely the latter. The reference to Bryan v. Itasca County, 426 U.S. 373 (1976), in the Senate Report is no different. It makes clear that the MICSA's reference to "civil jurisdiction" should not be construed to mean only jurisdiction over private civil litigation (i.e., adjudicative jurisdiction) but could also include the state's legislative jurisdiction. But, it does not speak to whether interpretive canons fall within § 1725(h) of the MICSA. 54 To the extent Maine and the Intervenors make a separate argument that states presumptively gain title to beds of navigable waters upon statehood, see, e.g., United States v. Holt State Bank, 270 U.S. 49, 54-55 (1926); Idaho v. Coeur d'Alene Tribe, 521 U.S. 261, 283-84 (1997), and thus that by the time the treaties were signed the Penobscot Nation no longer had any rights in the waters to reserve, there is no reason to think the drafters of the

- 133 - The Indian canon, in contrast, is responsive to the

interpretive question that we are left with. This canon is "rooted

in the unique trust relationship between the United States and the

Indians," Fellencer, 164 F.3d at 709 (quoting County of Oneida,

470 U.S. at 247), and that relationship applies here, see Joint

Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370,

373 (1st Cir. 1975). There is, moreover, especially good reason

to think that a construction in the Nation's favor is in fact a

fair proxy for Congress's intent, given the particular role

Settlement Acts incorporated the understanding that what was "reserved" never could have included the river for this reason and thus intended § 6203(8) of the MIA to refer only to uplands. Even if one thought there was some legal reason that the Nation could not have reserved rights in an area that included the waters in the treaties, notwithstanding an intent on the part of the treaty parties to permit the Nation to make such a reservation, the better understanding of the Settlement Acts is that Congress meant to incorporate the understanding of the treaty parties at the time. And, as I have noted, the evidence from the history shows that the treaty parties understood what had been reserved by the Nation at each juncture to include rights in waters and fisheries. In addition, the 1818 treaty itself granted to citizens of the Commonwealth the "right to pass and repass any of the rivers, streams, and ponds, which run through any of the lands hereby reserved, for the purpose of transporting their timber and other articles through the same." 1818 Treaty, supra, at 255. Whether or not that portion of the treaty refers to the Penobscot River, it at the least demonstrates that it was not the parties' understanding that the Penobscot Nation had no claim to any such navigable waters once Massachusetts became a state. Thus, especially when § 6207(4) of the MIA is brought into view, Maine and the Intervenors' contention about states presumptively gaining title to the beds of navigable waters upon statehood does nothing to clear up the ambiguity in the text that is plainly there and thus does nothing to preclude the application of the Indian canon.

- 134 - Congress was playing in settling these land claims in the face of

assertions that the Nonintercourse Act had been violated.

Notwithstanding the differences between Congress's

reference to the "body of lands known as Annette Islands" in the

statute at issue in Alaska Pacific Fisheries and the Settlement

Acts' way of referring to these islands here, this much is -- at

the very least -- clear: § 6203(8) of the MIA does not compel an

uplands-only reading, whether it is considered in the context of

the Settlement Acts as a whole or in the context of the

circumstances that led to their enactment. We thus are obliged to

resolve the ambiguity in the Penobscot Nation's favor. For, while

the Settlement Acts confirm that the Penobscot Nation gave up any

claim (aboriginal or otherwise) to the lands with which they had

parted through earlier treaties made without the required federal

authorization, I cannot see how we could say that it is equally

plain that the text of those Acts also confirms that the Acts do

not protect the Penobscot Nation's historic rights to the area

comprising the islands that the Nation now claims in this appeal.

Before we conclude that a statute purporting to honor what this

riverine Nation had "reserved . . . by agreement" in fact deprives

it of the sovereign rights that it had long enjoyed in the river

that defines it, we must have a clearer indication than is present

- 135 - here that the statute was intended to have such a dramatic and

potentially devastating consequence.

Accordingly, I respectfully dissent.

- 136 -